On 7 June 2011, the Work Health & Safety Act 2011 became law in NSW. The WHS Act repealed the Occupational Health & Safety Act 2000 and made three significant changes to the old law.
First, the new Act does away with the reverse onus of proof, which under the old law, meant, in effect, that all the prosecution had to prove was a work accident and then the onus shifted to the defence, which had to prove that the actions, that might have been taken to avoid the accident, were “not reasonably practicable”. This statutory reversal of the onus of proof was an assault on that principle of English criminal law, which Rumpole called the “golden thread”, namely that the prosecution must prove beyond reasonable doubt every single element of the crime charged and the defence does not have to prove a thing. Under the new Act, the prosecution must prove all of the elements of the offence including that the measures, that are asserted should have been taken to avoid the accident, were reasonably practicable. This will be easy if the risk of the accident was obvious e.g. unguarded machinery but, if the risk was not obvious, then the prosecutor will have to think twice about the evidence required.
Secondly, the new Act does away with the provisions which deemed as guilty officers of a guilty corporations. In their place are provisions imposing upon officers a duty to exercise all due diligence. The definition of officers is the same as the Corporations Act. Exercising due diligence includes taking steps to have knowledge of OHS matters, understanding hazards, ensuring that they are eliminated and the like. Some insurance companies offer cover for fines imposed on officers for OHS breaches but lawyers suggest that there are public policy difficulties about this because it is analogous to arranging for one person to do the time for another person’s crime.
Thirdly, the new Act does away with a trade union secretary’s right to prosecute an employer for an OHS breach. Not surprisingly, there was hot debate from the Opposition in the NSW Parliament about this change and the Government was always going to have its way.
Will the changes to OHS law make work places safer or affect the frequency of prosecutions or make it easier to defend a prosecution? The answer is, as the late Zhou En-lai, formerly Premier of China said, when asked what effect he though the French Revolution had had on the course of European history: “Too early to say”.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace issues from OHS obligations, contracts of employment and policy updates to termination of employees, redundancy correspondence and warning letters because Helping You is Our Business.
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