Bills Digest No. 137 2002-03
Occupational Health and Safety
(Commonwealth Employment) Amendment (Employee Involvement and
Compliance) Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Occupational Health and Safety
(Commonwealth Employment) Amendment (Employee Involvement and
Compliance) Bill 2002
Date
Introduced: 26 June
2002
House:
House of Representatives
Portfolio:
Employment and Workplace
Relations
Commencement:
Schedule 1 commences 28 days after
Royal Assent. Schedule 2 commences immediately after Royal Assent
is given to the formal provisions of the
legislation.
Among other
things, to amend the Occupational Health and Safety
(Commonwealth Employment) Act 1991 (the Principal Act)
to:
- change the role of unions in relation to occupational health
and safety in Commonwealth workplaces
- establish a civil penalty regime for statutory breaches and
reform the criminal penalty regime.
The Occupational Health and Safety
(Commonwealth Employment) Amendment (Employee Involvement and
Compliance) Bill 2002 (the 2002 Bill) is similar to one introduced
in 2000 the Occupational Health and Safety (Commonwealth
Employment) Bill 2000 (the 2000 Bill). The 2000 Bill lapsed with
the prorogation of Parliament for the 2001 General Election. A
Bills
Digest for the 2000 Bill is available online. That Digest
contains background information about occupational health and
safety for Commonwealth employees and a description of the 2000
Bill s main provisions.
The 2000 Bill was the subject of a report
by the Senate Employment, Workplace Relations, Small Business and
Education Legislation Committee. Government members of the
Committee supported the 2000 Bill:
Because it promotes a progressive culture-change
at the workplace through a greater measure of shared responsibility
for workplace safety without removing any existing obligation upon
employers.(1)
On the other hand Labor Senators expressed
concern about:
- elimination of union involvement in matters of occupational
health and safety (2)
- changes to workplace consultation arrangements in particular
lack of detail about how occupational health and safety committees
would operate and the exclusion of union participation on those
committees(3)
- changes to the enforcement regime. Labor Senators generally
supported a dual system of enforcement involving civil and criminal
penalties. However, they recommended new offences where an employer
s culpable action exposed an employee to the risk of serious bodily
harm (the 2000 Bill applied criminal penalties only where an
employer s conduct resulted in death or serious bodily
harm).(4)
Democrats Senator Andrew Murray commented on
the useful advances in the Bill and remarked on union misuses of
power under occupational health and safety (OHS) legislation but
said that:
In my view union officials with expertise in
H&S [health & safety] should continue to be involved as
appropriate in workplace health and safety.(5)
According to the Minister s Second Reading
Speech for the 2002 Bill:
This Bill includes some additional changes to
provide further protections for employees. Some amendments are also
included to strengthen the compliance provisions.
The Main Provisions section which follows
contains a description of the 2002 Bill and highlights some of the
changes made.
The objects of the Principal Act are set out
in section 3 and are:
- to protect the occupational health, safety and welfare of
Commonwealth employees, and to protect others at or near workplaces
from health and safety risks arising from the activities of those
employees
- to ensure that expert occupational health and safety advice is
available on matters affecting employers, employees and
contractors
- to promote occupational health and safety and foster
cooperation between employers and employees in occupational health
and safety matters.
Item 1 of Schedule
1 adds two new objects:
- to encourage employers and employees to observe their statutory
obligations
- to address non-compliance by way of civil remedies and, in
serious cases, criminal sanctions.
Section 14 of the Principal Act provides that
where a contractor for construction or maintenance purposes
controls a workplace, the Principal Act does not apply to that
workplace except that a person who installs or erects unsafe plant
in a workplace will be liable for the criminal penalty contained in
section 20. At present, the term contractor is limited to natural
persons. The Bill expands the definition to include bodies
corporate (item 7).
Item 8 inserts a definition
of employee representative . In general, this expression means a
registered organization of employees or an association of which an
employee is a member.
Items 11 and
13 repeal the definitions of involved union and registered
union , respectively. New and associated terms are inserted
instead.(6) Item 3 defines the word
association to be an association whose principal purpose is
protecting and promoting the interests of employees in employment
matters. Item 12 defines the expression,
registered organisation , to mean an organization within the
meaning of the Workplace Relations Act 1996 or a body
prescribed by regulation to be a registered organization.
The Commission will no longer be required to
respond to requests for information from employees, employers or
contractors on OHS matters. It will still be able to do so on its
own initiative (items 19-20). Comcare will be
given the function of responding to requests for information from
employers, employees and contractors (item
63).
The Commission will be given power to issue
directions for the election of OHS representatives (item
21).
At present, the Commonwealth, a Commonwealth
authority or employees of the Commonwealth or Commonwealth
authorities, cannot be prosecuted for an offence under the
Principal Act. An exception to this general rule is that a
Government business enterprise (GBE) or a GBE employee can be
prosecuted.(7) Further information about GBEs is
provided in the next section.
The Commonwealth and Commonwealth authorities
(except for GBEs) will continue to be immune from prosecution and,
in general, will not be liable to pay fines or penalties
(item 17). However, it will be possible:
- to seek and obtain a declaration that the Commonwealth or a
Commonwealth authority has breached a statutory duty or
requirement
- to secure a pecuniary penalty order from a court in respect of
the Commonwealth or a Commonwealth authority (a provision not found
in the 2000 Bill)
- to obtain a declaration against a Commonwealth employee or an
employee of a Commonwealth authority, or to prosecute such a
person. Such a person will also be liable to pay pecuniary
penalties.
A Government business enterprise is defined in
section 5 of the Principal Act to include Commonwealth authorities
scheduled to the Act. The authorities presently listed in the
Schedule are ANL Limited, Australian Industry Development
Corporation, Australian Postal Corporation, Health Insurance
Commission, Housing Loans Insurance Corporation, Pipeline Authority
and Telstra Corporation Limited. Item 156 inserts
the Australian Government Solicitor and the Defence Housing
Authority. Item 157 omits ANL Limited, the Health
Insurance Commission, the Housing Loans Insurance Corporation, the
Pipeline Authority and Telstra. However, the Explanatory Memorandum
states that Telstra will still be regarded as a GBE because it
falls within the general definition of GBE found in section 5.
The Principal Act enables investigations to be
conducted in response to workplace accidents, OHS disputes etc.
Where an investigation has been conducted a report must be
furnished to the Commission. At present, an investigation of a GBE
is exempt from this reporting requirement. As a result of
item 106 the exemption for GBEs is removed.
Paragraph 16(2)(d)(8) of the
Principal Act provides that an employer who fails to consult
involved unions and other relevant people when developing OHS
policies, commits a breach of their statutory duty. An employer
must also consult about review mechanisms for OHS measures.
Item 26 amends this
provision. As a result, an employer will breach their statutory
duty if they fail to consult with employees about safety management
arrangements rather than with involved unions about OHS policies.
The expression safety management arrangements is defined with
reference to a list of matters set out in new paragraph
16(2)(d). These matters must include mechanisms for
informing employees about safety management arrangements, varying
the arrangements, resolving disputes and, where required,
establishing a health and safety committee. Item
27 lists the matters that may appear in safety
management arrangements including a written occupational health and
safety policy, risk management arrangements and OHS training. The
matters listed in item 27 were generally not
spelled out in the 2000 Bill.
Employers who are developing safety management
arrangements must take account of any advice from the
Commission (item 29). An employee may be
represented in consultations about safety management arrangements
if the employee asks another employee to represent them or
asks an employee representative to represent them. The amendments
enable an employee who wishes to be represented by an employee
representative to have their identity protected by way of
proposed section 16B. Proposed section
16B enables Comcare to certify that an employee has
requested an employee representative to represent them.
A designated work group is a group of
employees established under section 24 of the Act. Its purpose is
to provide a mechanism for employee participation in improving OHS
in the workplace.
Item 42 repeals and replaces
subsections 24(1)-(3) so that instead of unions or employees being
able to ask an employer to establish or vary designated work
groups, the request will need to come from an employee, either
directly or indirectly (via an employee representative). An
employee representative will only be able to ask an employer to
establish or vary a designated work group if requested to do so by
an employee. (In contrast, the 2000 Bill only permitted employees
to request their employers to establish designated work
groups.)
Proposed section 24B places
new obligations on employers to keep a current list of all
designated work groups and ensure the list is available for
inspection by investigators and employees.
Subsections 25(1)-(2) of the Principal Act
provide that one employee health and safety representative (HSR)
may be selected for each designated work group. The task of the HSR
is to represent the health and safety interests of members of a
designated work group to their employer. An HSR must attend an
accredited occupational health and safety course.(9) The
Principal Act gives the HSR a number of powers and functions
including workplace inspections, asking an investigator or the SRC
Commission to inspect the workplace, investigating OHS complaints
made by employees, obtaining information held by the employer about
health and safety risks, and issuing provisional improvement
notices.(10)
Under the Principal Act, election of the HSR
is either by unanimous agreement of the members of the work group
or by election [subsection 25(3)]. If an election is held it is
conducted by the involved union or, in the absence of an involved
union by someone authorised by the Commission [subsection 25(4)].
Existing subsections 25(4) and 25(5)-(10), which deal with election
rules and processes, are repealed by item 44.
Instead, election procedures will be dealt
with in proposed section 25A. The amendments mean
that if there is a vacancy for an HSR, which has not been filled
within a reasonable time, the employer must call for nominations.
Unlike the 2000 Bill, the 2002 Bill provides that if an employer
fails to call for nominations within 6 months of the vacancy
occurring, the Commission can direct the employer to do so. If an
election is needed because more than one person nominates for the
position of HSR, it must be conducted by the employer and at the
employer s expense. Election rules will be set out in regulations
but elections need only be conducted under these rules if requested
by the lesser of:
- 100 employees normally in the designated work group , or
- a majority of
the employees normally in the designated work group
[proposed subsection 25A(4)].
In contrast to the 2002 Bill, the 2000 Bill
made no provision for election rules to be prescribed by
regulation. Instead, elections would have been conducted in
accordance with any directions issued by the Commission. The 2002
Bill also preserves the ability of the Commission to issue
directions about elections.
Proposed section 26A provides
for casual vacancies if health and safety representatives retire
early from their office.
At present, where an HSR believes, on
reasonable grounds, that a person is contravening their statutory
obligations, he or she must consult with a supervisor to try to
come to an agreement about rectifying the situation. If it is
impossible to reach an agreement, section 29 of the Principal Act
enables an HSR to give a provisional improvement notice (PIN) to
the employer or supervisor. The PIN must identify the statutory
breach and may specify what must be done to rectify it.
Item 52 clarifies that a
notice has effect as soon as it is given to the relevant person.
Item 55 provides that the HSR may request Comcare
or an investigator to investigate a matter that is the subject of a
notice if the notice has not been complied with or the responsible
person has not requested an investigation.
Section 34 of the Principal Act provides that
an employer must establish a health and safety committee in a
workplace where there are at least 50 employees and a request is
made by the health and safety representative or by a union.
Proposed section 34, which is inserted by
item 61, will mean that an employer must establish
such a committee if either:
- the employer has at least 50 employees across all workplaces,
or
- (in relation to a particular workplace), if there are at least
50 employees in that workplace and the health and safety
representative of a designated work group has made a written
request or a majority of the employees in the workplace make
a written request to the employer.
Item 61 is different to its
counterpart in the 2000 Bill (item 62) in a number of ways:
- it enables a majority of employees in a workplace of at least
50 employees to ask their employer to establish a health and safety
committee. The 2000 Bill only required an employer to establish
such a committee if he or she employed at least 50 people in a
particular State or Territory, the health and safety representative
made a written request and the request was reasonable.
- unlike the 2000 Bill, the 2002 Bill provides that the number of
management representatives on the committee must not exceed the
number of members chosen to represent employees [proposed
subsection 34(4)].
Part 4 of the Principal Act provides for OHS
investigations. Comcare staff or a person knowledgeable about OHS
can conduct investigations. Investigations can be conducted as part
of Comcare s Planned Investigation Program(11), in
response to an accident, as a result of an OHS dispute in a
workplace, and following reports of fatalities, serious injuries or
dangerous conditions. Investigators have wide powers to enter
workplaces, ask questions, require documents to be produced and
issue directions.(12) When conducting an investigation
an investigator is empowered to do various things to fix OHS
problems including:
- issuing a non-disturbance notice, effective while a threat is
removed or the workplace inspected (section 45)
- issuing an improvement notice, requiring a workplace to be
improved so that it complies with the Principal Act within a
specified time frame (section 47)
- issuing a prohibition notice, prohibiting an activity that the
investigator believes poses an immediate threat to any person s
health and safety (section 46).
Among other things, items 65 to
71 clarify that an investigation must proceed if the
Commission or Comcare directs that it be carried out unless the
Commission or Comcare revokes the direction. The amendments also
provide that while the Commission can revoke a direction issued by
Comcare, Comcare will not have a similar power in relation to
directions issued by the Commission.
At present, an involved union may request a
Comcare investigator or the Commission to carry out a workplace
investigation [subsection 41(5)]. Item 71 repeals
subsection 41(5) and inserts a new subsection that provides that an
employee representative may make a request to Comcare or the
Commission if an employee asks the employee representative to do
so.
As stated above, section 45 of the Principal
Act enables an investigator to issue a written non-disturbance
notice so that threats to occupational health or safety can be
removed or an inspection or tests can take place. Item
80 gives an investigator power to vary or revoke such
directions in writing, and sets out where the notice is to be
displayed and what it is to contain. If an inspector considers that
there is insufficient time to give a written notice, then
item 81 will empower him or her to give a
time-limited oral direction that a workplace not be disturbed in
order to remove immediate threats to occupational health or safety
or allow inspections to take place. As with written directions,
oral directions must be complied with by the employer. An oral
direction can be revoked, but not renewed or varied.
An inspector also has the power, under section
46 of the Principal Act, to issue a written prohibition notice to
an employer directing that an immediate threat to health or safety
be removed. An employer must comply with such a notice.
Item 87 provides that a prohibition notice may be
revoked or varied in writing and sets out what the new notice must
contain, to whom it must be given and where it must be
displayed.
Inspectors are empowered to issue written
improvement notices where statutory requirements are being
contravened or have been contravened (and it is likely that more
contraventions will occur) (section 47). Item 96
gives an inspector the power to revoke or vary such a notice in
writing. It also sets out what the new notice must contain, where
it must be displayed and who must be given copies of it.
Revocations and variations of non-disturbance
notices, prohibition notices or improvement notices will be
appealable to the Australian Industrial Relations Commission, as
are presently decisions like the issuing of prohibition and
improvement notices (items 97-100). Currently,
decisions can be appealed by a variety of actors including
employers affected by decisions, HSR representatives and involved
unions . The amendments remove references to involved unions
(items 101-102) and instead an employee
representative for the designated work group that includes an
employee affected by the decision who has requested the employee
representative to make the appeal , will be able to do so.
Under the Principal Act, it is an offence to
tamper with, remove or fail to display non-disturbance, prohibition
and improvement notices that must be displayed (section 50).
Section 50 of the Principal Act is repealed and replaced to extend
these provisions to revocation and variation notices.
Section 68 of the Principal Act requires
employers to notify and report any fatal accident, serious
injury, incapacitation, or dangerous occurrence to the
Commission.
Item 122 retains the
notification requirement but removes the reporting requirement.
At present regulations can be made about the
timing, manner and form of notices and
reports.(13) The content and purpose of reports, as
presently set out in the Occupational Health and Safety
(Commonwealth Employment) Regulations 1991, is quite different to
the content and purpose of notices. For instance, regulation 37B
itemises the information that must be contained in a notice. This
information includes the employer s name, the address of the
workplace, the time and date of the accident, details of accident,
the name of those who died, were injured or incapacitated, and
details of the person giving the notice. Information that must be
included in a report given under regulations 37E and 37F includes a
description of where the accident occurred and the action that the
employer has taken or proposes to take to prevent the recurrence of
such an accident.
No explanation is provided in the Explanatory
Memorandum about why the reporting requirement is to be removed.
For a discussion see Bills
Digest No. 112, 2000-01.
Section 74 of the Principal Act specifies what
must be included in annual reports of Commonwealth entities and
authorities. These include details of occupational health and
safety policies, measures taken to ensure occupational health and
safety, statistics of accidents and dangerous occurrences, and
investigations undertaken. Item 132 removes the
reference to occupational health and safety policies and replaces
it with a reference to safety management arrangements.
At present, annual reports must also provide
details of provisional improvement notices, non-disturbance
notices, prohibition notices and improvement notices that are given
to employers. Item 135 removes the requirement
that details of non-disturbance notices must be included.
Item 134 adds health and safety outcomes achieved
as the result of occupational health, safety and welfare
initiatives to the list. Section 74 of the Principal Act also
provides that the annual report must contain details of such other
matters as are prescribed. This requirement is removed by
item 136 and the annual reports will contain
details of matters set down by the Joint Committee of Public
Accounts and Audit.
Section 77 of the Principal Act empowers
Comcare or an investigator to initiate prosecutions for offences
against the Act or regulations. A health and safety representative
for a designated work group or an involved union can ask Comcare to
institute proceedings for a breach of the Act or regulations.
Before this can be done, 6 months must have elapsed since the
alleged breach without proceedings having been implemented.
Item 141 restructures section
77 and also removes the reference to an involved union. Instead, an
employee representative can ask Comcare to institute proceedings,
but can only do so at the request of an employee.
Item 154 provides that civil
or criminal penalties for a breach of the regulations cannot exceed
50 penalty units for an individual or 250 penalty units for a body
corporate. A penalty unit equals $110. The present limit set by the
Principal Act is $1,000.
It is noteworthy that the Government s
Legislation Handbook states that as a general principle:
provisions
creating offences which impose significant criminal penalties
(imprisonment or fines equal to more than 10 penalty units for
individuals or more than 50 penalty units for
corporations)(14)
should be contained in primary legislation
rather than in regulations.
The Bill makes a number of changes to the
penalty regime in the Principal Act, including:
- providing civil sanctions such as pecuniary penalty orders,
injunctions and remedial orders
- enabling declarations to be obtained against and pecuniary
penalty orders to be obtained in respect of Commonwealth
authorities and entities
- enabling Commonwealth employees and employees of Commonwealth
authorities to be prosecuted and making them liable to pay
pecuniary penalties
- increasing criminal penalties
- creating a number of serious offences where a statutory breach
results in death, serious injury or a substantial risk of those
things occurring.
The Government Senators report on the
Occupational Health and Safety (Commonwealth Employment) Amendment
Bill 2000 remarked:
Proceedings for breaches of the [Principal Act]
may proceed only by way of criminal prosecution, but compliance is
rarely enforced by prosecution. Since 1992, 50,000 accidents have
been reported, resulting in 1,770 investigations. There have,
however, been only 9 prosecutions arising from these
investigations. The time taken in these prosecutions ranged from 16
months to five years. The small number of matters dealt with by the
courts may be partly explained by effect of the current provisions
restricting prosecution of the Commonwealth and its authorities
(the so-called Shield of the Crown ), but it does appear that the
criminal penalties under the act have a limited role in encouraging
compliance.(15)
At present, criminal penalties are scattered
throughout the Principal Act and there is no provision for civil
proceedings. The Bill transfers all penalties into new
Schedule 2 and also enables civil proceedings to be
brought for statutory breaches.
In most cases, a statutory breach will render
a person liable to criminal or civil actions.(16)
However, in some cases statutory breaches will only result in
criminal proceedings.(17) In other cases, statutory
breaches that presently result in criminal prosecutions will only
be actionable in a civil court.(18) For instance, it is
currently an offence for an employer to dismiss an employee because
he or she has complained about an OHS matter or assisted in an
investigation etc (section 76). The maximum penalty is $25,000. The
effect of items 138, 139 and 158 is that an
employer who breaches section 76 will only be liable to a civil
penalty (maximum of 250 penalty units). An advantage of civil
proceedings is that the standard of proof is easier to satisfy.
However, it will not be possible to prosecute the employer in
criminal proceedings, even if he or she fails to pay the pecuniary
penalty. Nor will the employer be potentially subject to the
opprobrium associated with a criminal conviction.
Another feature of the new penalty regime is
the use of imprisonment. Imprisonment will be retained as a
punishment for statutory breaches such as the failure of a witness
to attend the Commission or answer questions or produce documents
(see new clauses 20 and 21). However, while an
employer who breaches their statutory duties and causes death or
serious bodily harm can be criminally prosecuted, the only
available penalty is a fine of up to 4,500 penalty units.
Imprisonment is not provided as a sentencing
option.(19)
As the Australian Law Reform Commission points
out in its recent Report, Principled Regulation. Federal Civil
& Administrative Penalties in
Australia(20), the following model of
liability is becoming common in federal statutes:
criminal liability and civil penalties attach to
the same conduct. Under this model criminal liability is
distinguished from civil penalty liability: criminal or offence
provisions generally require proof to a criminal standard of
physical elements and certain fault elements (usually intention or
recklessness). Civil penalty provisions may require proof of the
same physical elements to a civil standard. However, they do not
require proof of any fault elements.(21)
However, the availability of both civil and
criminal penalties for the same conduct raises policy issues
concerning double jeopardy.(22) The High Court recently
quoted the United States Supreme Court to explain the rule against
double jeopardy:
The State with all its resources and power should
not be allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a continuing state
of anxiety and insecurity, as well as enhancing the possibility
that even though innocent he may be found
guilty.(23)
While designed with the criminal law in mind,
it has been suggested that if civil penalties are punitive in
nature, then double jeopardy protection should be extended to
subsequent civil penalty proceedings for the same conduct.
(24)
New clauses 9-11 deal with
the availability of civil and criminal penalties and, in general,
follow the approach taken in other Commonwealth
statutes.(25) For instance, a civil penalty cannot be
imposed on a person who has been convicted of conduct that is
substantially the same as the conduct constituting the
contravention (new clause 9).
However, criminal proceedings can be commenced despite the person
being subject to a civil penalty order (clause
11). And, in general, evidence given in civil proceedings
against a person is not admissible in criminal proceedings relating
to substantially the same conduct (new clause
12).
New Part 1 of
new Schedule 2 deals with civil
proceedings. Clause 1 of new Schedule
2 gives the Federal Court and State/Territory Supreme
Courts jurisdiction in relation to civil proceedings commenced
under new Part 1.
A court will be able to declare that a person
has contravened specified statutory provisions. These include
employer s duties to their employees, non-compliance with a
non-disturbance direction, a prohibition notice or an improvement
notice. If a judicial declaration is made then a pecuniary penalty
may be imposed. Pecuniary penalties are listed in new
clause 4 and range from 10 penalty units for each day a
person fails to comply with an improvement notice to 2,200 penalty
units for an individual who has breached their duties to their
employees. Such a penalty is a debt payable to the Commonwealth.
New subclause 4(4) explicitly provides that a
court cannot imprison a person who defaults on payment of the
pecuniary penalty.
Comcare or an investigator can apply to a
court for declaration or a pecuniary penalty order (new
clause 5). A limitation period of 6 years from the time of
the alleged breach applies (new clause 6).
New clause 14 enables Comcare
or an investigator to apply to a court for an injunction if a
person has breached, is breaching or proposes to breach the
Principal Act or regulations. Injunctions that are available will
include prohibitory injunctions, mandatory injunctions (requiring a
person to do something) and interim injunctions (restraining a
person from engaging in conduct or requiring them to do something,
before deciding an application for an injunction).
A court that has made a declaration or
convicted a person of an offence against the Act or regulations can
also issue a remedial order (new clause 15).
Remedial orders can include rectification, reinstatement and
compensation orders.
New clause 16 enables Comcare
to accept a written undertaking relating to the fulfilment of a
statutory obligation. If proceedings for a declaration have
commenced, Comcare can ask the court to adjourn the proceedings if
it considers that an appropriate written undertaking is in force.
However, if the court considers that the person has breached the
undertaking or changed the undertaking without Comcare s consent
then proceedings can be revived or the court can order the person
to comply with the undertaking.
Criminal prosecutions are dealt with in
new Part 2 of new Schedule 2.
State and Territory courts rather than the Federal Court will have
jurisdiction in relation to criminal proceedings (item
17).
The Bill creates a number of categories of
offence:
- statutory breaches resulting in death or serious bodily harm
(new clause 18)
- a statutory breach of an employer s duty to their employees
which exposes employees to a substantial risk of death or serious
bodily harm (new clause 19), and
- other offences (new clause 20).
Where a person breaches one of the 13
statutory provisions enumerated in new clause 18,
the breach causes death or serious bodily harm, and the person was
either negligent or reckless about whether the breach would cause
death or serious bodily harm, the person will be guilty of an
offence. The maximum penalty available to a court in such a case is
found in the table in new clause 21. For example,
if an employer breaches his or her statutory duty to an employee
under subsection 16(1) and death or serious bodily harm results
then the maximum penalty is 4,500 penalty units
($495,000(26)). In some cases, penalties differ
depending on whether the offender is a body corporate or a natural
person. For instance, if death results from the statutory breach of
a person s duties erecting or installing plant in a workplace, the
maximum penalty for a natural person is 900 penalty units ($99,000)
and for a corporation it is 4,500 penalty units.
New clause 19 creates a
category of criminal offence not present in the 2000 Bill breach of
an employer s duty to his or her employees that exposes them to a
substantial risk of death or serious bodily harm. To be guilty of
this offence the employer must be either negligent or reckless that
that breach would expose the employee to a substantial risk of
death or serious bodily harm. Unlike new clause
18, which creates offences in relation to breaches of 13
statutory provisions, new clause 19 only operates
with respect to breaches of one statutory provision subsection
16(1).
New subclause 21(2) provides
that section 4K of the Crimes Act 1914 (Cwlth) does not
apply in relation to death or serious bodily harm resulting from
failure to comply with an improvement notice. In other words the
offender will not be liable to a fine that accumulates for each day
that the offender is in breach of the improvement notice.
New subclause 21(3) provides
that if a fine is imposed a court cannot direct the person to serve
a custodial sentence in default of the payment of the fine.
Custodial penalties are retained in the case
of some statutory breaches. For the most part, custodial sentences
are retained for those who refuse to co-operate with Commission
inquiries for example, where a person refuses to give information
or produce documents or fails to attend as a witness. In each case,
an offender may be liable to a maximum custodial sentence of 6
months imprisonment as well as, or instead of, a fine. The Bill
retains both the custodial sentence and a fine for these
offences.
Transitional arrangements are contained in
items 159-174.
Schedule 2 contains
consequential amendments to the Employment, Workplace Relation
and Small Business Amendment (Application of Criminal Code) Act
2001. The amendments are necessary to remove references to
legislation that lapsed.
- Senate Employment, Workplace Relations, Small
Business and Education Legislation Committee, Consideration of
Provisions. Occupational Health and Safety (Commonwealth
Employment) Amendment Bill 200. Safety, Rehabilitation and
Compensation and Other Legislation Amendment Bill 2000, May 2001,
p. 7.
- p. 9.
- pp. 11 12
- pp. 12 13.
- p. 18.
- See, for example, items
3, 8 and 12.
- Section 11.
- Read in conjunction with subsection 16(1) of
the Principal Act.
- Section 27, Principal Act.
- Section 28, Principal Act.
- A Planned Investigation Program is an audit
of compliance with the Principal Act in Commonwealth workplaces.
See http://www.comcare.gov.au/ohs/2/pip.html
(accessed 16 April 2003).
- SRC Commission & Comcare, op. cit.
- References to reports are removed from the
regulation making power (item 123).
- Department of the Prime Minister and Cabinet,
Legislation Handbook, para 1.12.
- Senate Employment, Workplace Relations, Small
Business and Education Legislation Committee, Consideration of
Provisions. Occupational Health and Safety (Commonwealth
Employment) Amendment Bill 2000, Safety, Rehabilitation and
Compensation and Other Legislation Amendment Bill 2000, May 2001,
p. 2.
- Items 24, 31, 33, 35, 37, 38, 40, 73,
79, 84 and 94.
- Items 107, 110, 114, 117 and
128.
- Items 119, 131 and 139.
- There have been attempts to pass industrial
manslaughter laws in some Australian jurisdictions. For instance, a
(Workplace Deaths and Serious Injuries) Bill 2001 was introduced
into the Victorian Parliament in November 2001 but did not proceed.
The Victorian Bill enabled senior officers of corporations found
guilty of manslaughter or negligently causing serious injury to be
convicted of an offence, The maximum penalties were five years
imprisonment and/or $180,000 in the case of manslaughter and two
years imprisonment and/or $120,000 in the case of negligence
causing serious injury. The Bill also provided that the offences
applied to Crown statutory corporations. The Bill also contained
large fines of $5 million for a corporation convicted of
manslaughter and $2 million for a corporation convicted of
negligently causing serious injury. See Victoria. House of
Assembly, Hansard, Second Reading Speech, Crimes (Workplace Deaths
and Serious Injuries) Bill, 22 November 2001. There were also
suggestions in 2002 that a Bill would be introduced into the
Queensland Parliament but these plans appear to have been shelved.
In December 2002 a Crimes (Industrial Manslaughter) Bill was
introduced into the ACT Legislative Assembly.
- Australian Law Reform Commission, Principled
Regulation. Federal Civil & Administrative Penalties in
Australia, Report 95, December 2002.
- ibid., para 11.27.
- ibid., paras 11.11-11.12 and following.
- Quoted in Pearce v. The Queen (1998) 194 CLR
610 at 614.
- Australian Law Reform Commission, op.cit.,
para 11.37.
- For example, the Corporations Act,
Environment Protection and Biodiversity Conservation Act 1999 and
the Commonwealth Companies and Authorities Act 1997.
- A penalty unit is $110.
Jennifer Norberry
17 April 2003
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2003
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
2003.
Back to top