the criminalisation of our ohs laws

1. The Criminalisation of our OHS Laws 8 October 2010 SISA AGM

3. OHS & W Penalties 1 Jan 2008 Penalty Level Individuals Bodies Corporate Division 1 fine $200 000 $600 000 Division 2 fine $100 000 $300 000 Division 3 fine $ 40 000 $120 000 Division 4 fine $ 30 000 $90 000 Division 5 fine $ 20 000 $60 000 Division 6 fine $ 10 000 $30 000 Division 7 fine $ 5 000 $15 000 Second Offence: double plus $40,000.00 �Endanger Persons� 5 years Gaol or double Division 1

4. New offences under the Act Occupational, Health, Safety and Welfare (Penalties) Amendment Act 2007 Came into effect/applies to offences after 1 January 2008 Tripled offences for companies New Offences e.g. introduction of S59; S59A � C Tripling of penalties for corporation and specific offences for individuals Anticipation of Harmonised laws at end of 2011 Yet to see impact 2 years to prosecute offence but expect to see impact in next couple of months. Safework have gone through actual amendments (I�m going to look at practical and legal effect of amendments � where the rubber meets the road!) A bit of doom and gloom for Employers and officers of Corporations involved in management of Corporations Call it the �Gaol and Sale� Act Gaol � where you could end up Sale � is what you may have to do to your house to pay the fines And hopefully provide some guidance on strategies to consider to reduce potential liability Yet to see impact 2 years to prosecute offence but expect to see impact in next couple of months. Safework have gone through actual amendments (I�m going to look at practical and legal effect of amendments � where the rubber meets the road!) A bit of doom and gloom for Employers and officers of Corporations involved in management of Corporations Call it the �Gaol and Sale� Act Gaol � where you could end up Sale � is what you may have to do to your house to pay the fines And hopefully provide some guidance on strategies to consider to reduce potential liability

5. Past Prosecutions

6. New offence � Endangerment � S59 New offence of endangerment replaces existing aggravated offence No case law for guidance Look at wording of section 59�Offence to endanger persons in workplaces A person is guilty of an offence if� (a) the person, without lawful excuse, acts in a manner that creates a substantial risk of death or serious harm to another who is in a workplace; and (b) the person� (i) knew that his or her act or acts would create that risk; or (ii) was recklessly indifferent about whether his or her act or acts would create that risk.

7. New Offence � Endangerment � S59 cont. A �risk� of death or serious harm Mental elements Court must find actual knowledge not imported or constructive Or a reckless indifference; if the accused foresaw and realised his act would probably create a risk of actual death and serious harm and acted regardless Defence - lawful excuse Penalties for breach $1.2 million for companies $400,000 or 5 years gaol for individuals

8. New Offence � Endangerment � S59 Examples of conduct -Orbit Drilling Pty Ltd Company charged under s32 of Vic OHS Act as was Director under s144 (�recklessly endangering a worker�) 21 year old employee was crushed to death when the overloaded Mack truck he was driving lost control and overturned on a steep, off road slope Facts: No induction or safety training Employee held truck licence for little more than 2 weeks Only 11 hours of driving lessons Directed to drive down the 10 degree slope without adequate gear selection training Truck found to have faulty primary and emergency brakes, with secondary brakes disconnected Truck not serviced for 6 months Company convicted and fined $750,000, Director $120,000 Supervisor also charged under s32 and is matter is currently being heard. Victoria case examples Orbit and now further matter Supervisor looking at 5 years in jailVictoria case examples Orbit and now further matter Supervisor looking at 5 years in jail

9. Liability of officers of body corporate - S59C An officer includes (s4) - member of governing body - executive officer If company is found guilty of an offence under the Act, and the contravention is attributable to an officer, then the officer is also guilty of an offence and liable to the same penalty as the company Company officers can not hide behind the corporate veil Deemed guilty of offence �Attributable� very open for interpretation Less than a direct consequence Doesn�t have to be solely attributable Officers conduct could be one factor Concerning given most ohs incidents are a result of a combination of factures or failures Open up potential avenues of prosecutions against individual officers Greater potential for fines No gaol for an offence under this provision

10. National Harmonised Legislation Penalties Duty of Care Offence Corp. Officer Worker Cat 1 -recklessness $3M $600k/ 5yrs jail $300k/5yrs Cat 2 - serious risk $1.5M $300k $150K Cat 3 - less serious $500K $100K $50K Other Offences Cat 4 � 7 to range from $5,000 - $250,000

11. Powers of SafeWork Inspectors Powers of entry and inspection � OHS&W Act (1986)(SA) � Section 38. Inspector has power to: Enter a workplace at any time; Inspect the workplace or anything in the workplace; Require a person to produce books, documents or records Examine, copy or take extracts from books, documents or records; Take photo�s, films, video or audio recordings; Take measurements, make notes and records and carry out tests; Require a person to answer any questions relating to health safety and welfare of persons at the workplace; Require production of statement or record required under the act Seize evidence *Audio recordings � issue � listening device act requires consent to record � practice of Safework to audio taped interviews *requirement to answer questions � Powers greater than police � take away common right to silence *Audio recordings � issue � listening device act requires consent to record � practice of Safework to audio taped interviews *requirement to answer questions � Powers greater than police � take away common right to silence

12. Powers of Safework Inspectors Exceptions Legal professional privilege Information relevant to proceedings that have been commenced under the act. Offences Hinder or obstruct an inspector in exercise of power Refuse without lawful excuse to comply with requirements Penalty Fines up to $20,000.00 for company and individual Legal Professional Privilege � Discuss later What is lawful excuse? � Give examplesLegal Professional Privilege � Discuss later What is lawful excuse? � Give examples

13. What is LPP and when can it be used? LPP coveys a right to the client in the client/lawyer relationship. It is a basis that protects certain classes of information from disclosure. LPP will protect information from disclosure provided that it is for: Confidential communications; Between a client and their lawyers; and It is made or brought into existence from the dominant purpose of either: Use in existing or anticipated litigation: or Legal advice Information protected by LPP cannot be distributed generally, copied or discussed too widely, as this may result in LPP being lost or waived.

14. Practical considerations The law imposes significant obligations Review your: Occupational Health and Safety system Incident response procedures Incident reporting procedures Use of legal professional privilege Education of employees in dealings with workplace health and safety officers The penalties are severe � and likely to get higher in the current review Courts responding to community & political message Get onto it now � don�t be the case which is used to send a message to everyone else