Wendy Thompson is a barrister at Denham Chambers with a large OHS practice. Wendy has over 21 years’ experience conducting and defending prosecutions. She spoke to CCH about the various administrative enforcement options under the model Work Health and Safety Bill (WHS Bill) and their significance to the success of the new laws.

The WHS Bill contains a number of administrative enforcement options which a regulator can utilise to supplement enforcement though criminal prosecution. According to the objects of the WHS Bill, these enforcement options are intended to secure “compliance with [the WHS Bill] through effective and appropriate compliance and enforcement measures” (s (3)(1)(e) of the WHS Bill). The administrative enforcement options may be used by a regulator instead of, or as a precursor to, commencing a prosecution to obtain compliance with the regulatory regime.

Part 10 of the WHS Bill contains provisions relating to the issuance of improvement notices, prohibition notices and non-disturbance notices. Under Part 10 of the WHS Bill, a regulator is also empowered to take other remedial action to ensure compliance and seek court injunctions where there has been non-compliance with a notice. Thompson says that, “in many ways, these enforcement options will not be new to those familiar with existing OHS legislation in the Commonwealth, states and territories.” However, before practitioners dismiss the new regime as simply more of the same, Thompson sounds a note of caution:

“The operation of improvement notices, prohibition notices and non-disturbance notices under the WHS Bill differ from the way in which these operate under the various OHS statutes at the moment, with some important ramifications. For example, the level of penalty available for non-compliance with a notice, the effect of the notices, and the appeal process available to seek review of a notice may be significantly different to what people may have been used to under their existing regime. It will be important to carefully study the new laws, especially the extent to which they deviate from existing OHS regimes.”

Another very important feature of the WHS Bill is the ability for all regulators to accept a WHS undertaking instead of commencing a prosecution where there has been a contravention or alleged contravention of the WHS Bill (except the breach of a “Category 1 offence where there has been reckless indifference to death or serious injury). Accepting a WHS undertaking will preclude a regulator from commencing a prosecution while that undertaking is in effect or has been completely discharged. According to Thompson, “the use of WHS undertakings will be a new feature for a lot of people.” At present, only the Commonwealth, ACT and Queensland systems allow regulators to accept enforceable undertakings.

Thompson thinks that WHS undertakings will be used sparingly by the regulators because they will not be suitable for all cases:

“WHS undertakings will be a costly exercise for a business because the commitments that a business will need to make to satisfy a regulator that it intends to take appropriate steps to address any shortcomings will usually be quite onerous. As such, enforceable undertakings is more likely be used by a regulator where a large corporation or government department in breach of its obligations expresses genuine contrition and commits to widespread reform of its OHS systems that will deliver benefits to industry and the broader community.”

The WHS Bill requires regulators to publish on their websites a decision to accept a WHS undertaking and reasons for the decision. Thompson believes that this will “give the process great transparency and ensure that all the different regulators are taking a consistent and fair approach to accepting enforceable undertakings.”

Finally, s 243 of the WHS Bill allows each of the various jurisdictions to establish an infringement scheme in relation to the WHS Bill. An infringement notice is an “on-the-spot” fine which an authorised party can issue for a prescribed breach of the WHS Bill. At the time of print, none of the jurisdictions had released the details of any proposed infringement scheme.

Thompson believes that regulators will need to in each particular case weigh up all the various enforcement options. “Regulators should not have a one size fits all approach to enforcement and one option should not be the instant recourse,” argues Thompson. Thompson view is that “OHS compliance is about engaging a business or industry to make meaningful long-term change that has beneficial health and safety outcomes and this will require a considered approach to enforcement.”

Once the WHS Bill comes into force on 1 January 2012, regulators will have a number of enforcement options available to work with businesses to ensure compliance with regulatory standards. Precisely how regulators will utilise the new regime to achieve these ends remains to be seen.

Please stay tuned for a future edition of Australian Occupational Health and Safety Law Tracker where Wendy Thompson provides her thoughts on the formal process for enforcement though criminal prosecution provided by the WHS Bill and how this differs from existing regimes.

CCH Australia is working with a renowned team of experts including Wendy Thompson (Denham Chambers), Cormack Dunn (Freehills), Professor Richard Johnstone (Griffith University) and Professor Ron McCallum (Sydney University) to release a new version of the Australian Occupational Health and Safety Law service in July 2011 incorporating commentary on the new laws.

Neil Foster is a senior lecturer at the University of Newcastle’s School of Law. He spoke to CCH about the new officers’ duty under the model Work Health and Safety Act (WHS Act).

The new officers’ duty contained in the WHS Act has attracted a significant amount of interest since the draft WHS Act (then called the Safe Work Act) was released in October 2009 (the latest draft was released in May 2010). In addition to the primary duty of care contained in section 19 of the WHS Act, section 27 requires that an officer of a person conducting a business or undertaking exercise due diligence to ensure that a duty holder complies with its obligations under the WHS Act.

This in effect imposes a positive duty upon an officer of a company to exercise due diligence. Making an officer personally liability under OHS legislation is not a new development and has been a feature of many of the state and territory OHS statutes for a long time. Foster argues that personal liability is a crucial part of OHS regulation because “a lot of research points to the fact that personal liability focuses the minds of senior management on health and safety issues.”

An important issue is how “officers” are defined under the WHS Act. The National Occupational Health and Safety Review Panel (Panel), charged with making recommendations regarding the content of the harmonised law, recommended that the WHS Act adopt the definition of “officers” contained in the Corporations Act 2001 (Cth) with a few minor amendments. This means that directors of a company and others who make or participate in making decisions about the company are covered. However, Foster sees the adoption of the Corporations Act definition as problematic because the definition picks up those who have authority to affect the financial standing of the organisation. According to Foster, “just because you can affect the financial standing of the corporation doesn’t mean that you have the capacity to affect the health and safety of those at work. It makes sense in the context of financial accountability but not necessarily in the context of OHS.”

Instead, Foster argues, the Panel would have been better off recommending the adoption of the definition contained in section 26 of the Occupational Health and Safety Act 2000 (NSW). Section 26 imposes a duty on those “concerned in the management of the company.” Although the definition adopted in the WHS Act was initially motivated by a desire to narrow the scope of the duty (by excluding “middle management”), Foster says that “ironically, it could have the opposite effect.”

The duty under the WHS Act only requires an officer to exercise due diligence. The WHS Act defines “due diligence” in section 27 to include matters such as ensuring that the person conducting the business or undertaking implement processes for complying with its duties under the WHS Act. Although the initial drafts of the WHS Act contained an exhaustive legislative definition, the most recent draft of the WHS Act states that the definition “includes” the listed factors. Foster points out that “this leaves room for courts interpreting the legislation to broaden the scope of the definition, by requiring for example, that an officer is required to provide adequate supervision to ensure that a health and safety system is carried out.”

The consequences for an officer found to be in breach of the WHS Act can be severe. The WHS Act provides for three categories of penalties, with the penalty increasing in severity depending on whether the breach resulted in a risk of a death or serious injury or illness. The highest penalty is reserved for those that demonstrate recklessness without reasonable excuse. Foster says that “the new penalties under the WHS Act are significantly higher than is now the case under state OHS legislation. For a NSW manager, who might face a $55,000 penalty at the moment, they will now face a potential $300,000 for a similar offence where there is a risk of serious harm. In addition, if they are reckless and if there was a risk of death or serious injury, the maximum financial penalty is increased from $165,000 under current section 32A in NSW, to $600,000 under s 31 [of the WHS Act].”

Some commentators have argued that “category three” offences- those where there has been a simple failure to comply with the WHS Act- should be a civil penalty provision rather than a criminal offence. However, Foster remains vehemently opposed to such a proposal arguing that “this would send the wrong message. We need to be saying that exposing someone to injury or illness as a result of work carried out is seriously unacceptable behaviour.”

One aspect of the new laws that Foster remains very critical about is the fact that the prosecution bears the onus of proof to show that an officer has not met the standard of due diligence. According to Foster, this will make prosecutions quite difficult to obtain because the prosecution needs to adduce evidence negating each of the limbs contained in the definition of due diligence.

“The logical way that the legislation ought to have been set up is that officers had to show that they had exercised due diligence. Officers are the ones likely to be in possession of the evidence showing that they had taken steps to comply with their statutory obligations. This is how OHS legislation has historically been set up, and in jurisdictions where the reverse onus of proof has existed, such as the UK, the legislation has operated without imposing undue detriment on officers,” says Foster.

Despite some of these shortcomings, Foster believes that casting the new officers’ duty as a positive duty to exercise due diligence is a step in the right direction because it sends a clear message about the importance of safety in the workplace.

Readers interested in reading some of Neil Foster’s academic writing on this issue can access his work at http://works.bepress.com/neil_foster/