Death in the Workplace

1
Death in the Workplace
Practical Advice - Commercial Outcomes

• David Glinatsis - Partner
• 23 March 2006

2
Introduction

• Occupational Health Safety Amendment (Workplace
  deaths) Act 2005
• New offence
• Higher penalties

Practical Advice Commercial Outcomes

3
Trends
Practical Advice Commercial Outcomes

4
Passage of Changes

• Long history of prescriptive Statutes and
  Regulations
• Occupational Health Safety Act 1983
• Performance based duties
• Prosecutions were last resort

Practical Advice Commercial Outcomes

5
Passage of Changes

• Occupational Health Safety Act 2000
• Followed review
• Strengthening of performance based duties
• Criminal sanctions last resort

Practical Advice Commercial Outcomes

6
Different views on Safety

• Deregulation Model
• Criminalisation Model

Practical Advice Commercial Outcomes

7
Different views on Safety
Practical Advice Commercial Outcomes

8
Recommendations

• Maccullum Report
• New offence
• Increase penalty
• Strict liability
• Government Response
• Industry concerns

Practical Advice Commercial Outcomes

9
The changes

• New offence s32A of OHS Act
• Conduct which causes death
• Person must owe a duty
• Person is reckless

Practical Advice Commercial Outcomes

10
First Element - Conduct

• Act or omission
• Conduct substantially contributes to death
• Place other than work

Practical Advice Commercial Outcomes

11
Second Element - Duty

• Duty
• Must be owed
• Categories of duty

Practical Advice Commercial Outcomes

12
Third Element - Recklessness

• Previous position
• Strict Liability
• Only need to prove duty and breach
• Present position
• Need to prove reckless conduct
• What is reckless
• Relevance of foresight
• Objective test
• Reasonable person?

Practical Advice Commercial Outcomes

13
Offences by Corporation

• Common law position
• Difficulties in proving offence
• Position under the Act

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14
Defences

• Reasonable excuse
• Matter for Court
• Examples

Practical Advice Commercial Outcomes

15
Penalties

• S8 offences
• Individual 55,000
• Corporation 550,000
• S32A offences
• Individual 165,000
• Corporation 1,65m
• 5 years imprisonment

Practical Advice Commercial Outcomes

16
Directors Liability

• S26 deeming provision does not apply
• S32A (6) onus of proof
• Acts or omissions
• Causation
• Recklessness

Practical Advice Commercial Outcomes

17
Rights of Appeal

• Full Bench of Industrial Relations Commission
• Individual
• Corporation - fine
• Supreme Court
• Individual
• Imprisonment

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18
Other matters

• Right to commence proceedings
• Restriction on Unions
• Review of Act

Practical Advice Commercial Outcomes

19
Implications

• Deficiencies
• No strict liability
• Does not appear to add to existing law
• Constraints on appeal
• Inconsistent penalties
• Prosecution should be in Supreme Court
• No trial by jury

Practical Advice Commercial Outcomes

20
Implications

• Conclusion

Practical Advice Commercial Outcomes

21
Practical Advice - Commercial Outcomes

• David Glinatsis - Partner
• 23 March 2006