The deadline for compliance under NSW’s new Occupational Health and Safety Act 2000 has passed. Compliance is absolute and can not be delegated. The duties are ongoing and matters of safety must be considered to be an evolving process and thus reviewed on a timely basis.
Any organisation or persons found guilty of breaching the Act and its associated regulations will face hefty penalties including possible imprisonment. Although the new Act makes very little change to the substantive obligations, the associated regulations provide greater guidance as to how some of the duties can be achieved.
The new Act continues to further develop the notion that directors of companies or “persons concerned with management” have a separate and coextensive liability with an employer, including an employer corporation. This notion, in part, ensures that criminal sanctions are available to punish recalcitrant corporations by attaching penalties to the officers of those companies.
The defences available to directors or persons concerned with management are limited. In short, the person must prove that he or she was not in a position to influence decisions, or that he or she being in such a position, used all due diligence to prevent the contravention. Directors or managers can be convicted regardless of whether the corporation has been prosecuted. Further, a company is prevented from indemnifying its directors and managers should monetary penalty be imposed, and these penalties are not liabilities in respect of which companies can insure.
There are separate penalties now under the Act that deal with the failure to “consult”. This newly created obligation requires employers to continually consult with their employees on OH&S matters, and for some to establish OH&S committees and representatives. The regulations provided that committees and representatives must represent relevant “work groups”, having regard to gender, ethnicity, age, hours of work and geographic location. There are regulations that also govern the method of electing committee members and representatives. The duty to consult is onerous, and employers must invest time and resources to comply. One could say that the duty to consult creates a “bottom-up” approach to safety, rather than the traditional “top-down”.
The NSW WorkCover Authority can inspect a workplace in the event of an accident, or if a complaint has been received regarding an unsafe system of work. The inspectors have wide powers and can demand to inspect any worksite without notice. As such it is imperative that matters of Occupational Health and Safety be given priority. All employers and employer corporations should have in place an updated corporate policy regarding OH&S and, in the case of corporations, this should be endorsed by the CEO or senior executives including directors. Compliance should be part of a corporation’s due diligence and anything less will be seen to be unsatisfactory.
Heechung Sung is a senior solicitor and OH&S specialist for Abbott Tout Solicitors. Contact her at email@example.com.