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Facing up to responsibility

In Western Australia, companies and individual employees are, and always have been, subject to criminal liability for accidents in the workplace.

Proposed changes to the degree of liability are currently open for discussion as part of the Government’s review of the Occupational Health Safety

& Welfare Act 1984 and the Mine Safety & Inspection Act 1994.

In a 1996 decision, a director of a Western Australian company was personally fined $35,000, having been found guilty of an offence under the Occupational Health Safety & Welfare Act 1984.

The prosecution followed the death of an employee from a hydrofluoric acid spill. The fine was reduced to $5,000 on appeal.

Similarly, in a 1994 Victorian decision, an officer of a company was fined $40,000 (and the company $120,000) for criminal negligence leading to the death of a worker driving a company truck that was defective.

In addition to the Occupational Safety & Health Act 1984 and the Mine Safety & Inspection Act 1994, there are provisions under the Western Australian Criminal Code that can be used to prosecute corporations and individuals in the case of a death or serious injury in the workplace.

Criminal proceedings have also been used against individuals overseas.

In Britain in January 2002, Barry Ramsey, a contractor engaged to inspect fairground equipment, was committed to stand trial for manslaughter charges. The charges arose out of allegations that Ramsey certified a ride as safe without actually inspecting it. Subsequently, a car from the ride fell off and plunged to the ground, killing 2 passengers.

In 1991 in America, the president of Imperial Food Products was sentenced to a twenty-year jail term following the death of 26 people at a poultry processing plant. The deaths followed a factory fire, from which it emerged that management had locked the emergency exits to stop employee theft.

However, Health & Safety and related legislation has often been criticised as ineffective when prosecuting companies or individuals for deaths in the workplace. Primarily, the criticisms are:

p the current legal tests applicable to companies make it too difficult to find a corporation guilty of a criminal offence, and

p the penalties imposed on individuals and corporations are not sufficient or adequate in the case of workplace deaths.

The Victorian Government has responded to these types of concerns by introducing the Crimes (Workplace Deaths and Serious Injuries) Bill 2001.

The objectives of the Bill include:

p to address inadequacies in the existing law,

p to enable prosecutions to be brought more effectively, and

p to specifically extend liability for accidents and deaths in the workplace to those officers responsible for the management and operation of the corporation.

The Bill also proposes a significant increase in penalties for workplace deaths or accidents causing serious injuries, including specific gaol terms for individuals. These penalties include:

p a maximum penalty of $5 million for a corporation found guilty of manslaughter,

p a $2 million fine for a corporation found guilty of negligently causing serious injury,

p a maximum penalty of five years in gaol and/or a $180,000 fine for a relevant officer where a corporation has committed manslaughter, and

p a maximum penalty of two years in gaol and/or a $120,000 fine for a relevant officer where a corporation has negligently caused serious injury.

The issue of industrial manslaughter is a matter of general public interest, and the union movement in Western Australia has called for stronger measures against companies and individual office-holders similar to the Victorian proposals. Western Australia’s health and safety legislation is currently under independent review and a consultation report has been released for public comment.

The reports provide 105 recommendations in relation to the Occupational Safety & Health Act and 57 recommendations in relation to the Mines Safety & Inspection Act, although there is a large degree of overlap in the recommendations.

Some of the substantive changes in relation to safety and health include:

p clearly establishing the accountability of corporations, their directors and senior officers for the safety and health of employees,

p senior company officers be held responsible for the death or serious injuries of employees, and

p maximum penalties be increased to reflect penalty levels in other jurisdictions and community expectations, including imprisonment for serious offences.

To what extent any of the report’s recommendations are adopted, and whether they go as far as the Victorian model, will only become clear in time. However, what is clear is that an employer’s obligation for the safety of their employees is a matter of increasing public and legislative concern.

At the very least it is likely that there will be significant increases in penalties for occupational safety and health breaches.

Closing date for submissions on the draft report is April 5 2002.

All employers and employees have rights and responsibilities under occupation safety and health legislation.

Ultimately, the aim of that legislation is to protect anybody, including visitors and third parties, who happen to be at a workplace.

The current discussion and interest surrounding industrial manslaughter legislation is a timely reminder to employees and employers of their obligations and an opportunity for employers to review their safety management systems, including contract safety management systems, to ensure that they are meeting all of their obligations.

p Greg Smith is a partner at Jackson McDonald and can be contacted on 9426 6849,

0409 297 835 or at

gsmith@jacmac.com.au.

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