OHSW – increasing penalties for employers

Paul Holloway (Leader of the Government in the Legislative Council) introduced the Occupational Health, Safety and Welfare (Penalties) Amendment Bill to the Legislative Council on 31st May 2007. He explained that the Bill is part of the Government's “ongoing commitment to achieve reform in the area of occupational health and safety” and that it was developed in response to recommenda­tions contained in the 2002 Stanley Report Into the Workers Compensation and Occupational Health Safety and Welfare Systems in South Australia.

Mr Holloway described the key changes proposed in the Bill as:
1. an increase in the maximum level of fines for corpora­tions;
2. a new offence of reckless endangerment; and
3. clarification of corporate liability and conduct of officers.

The increased fines are said to “be more in line with interstate fines” and are intended to act as a deterrent for “those employers who disregard their obligations and duties under the Act”. The Bill also makes a distinction between penalties that can be imposed on a corporation or an administrative unit and those that can be imposed on an individual.

The new ‘endangerment’ offence replaces the current s.59 aggravated offence. The new provision is intended to remove the ‘evidentiary hurdle’ created by requirement of proof of state of mind under the current s.59, under which there has not been a successful prosecution in 20 years. The government describes the new ‘reckless endangerment’ offence as “a more effective and powerful alternative to aggravated offences and industrial manslaughter”. The proposed s.59 offence provides that a person must not knowingly or recklessly act in a manner that may seriously endanger the health or safety of another person.

Sandra Kanck and Liberal MPs expressed concerns about the potential impact upon employers – that the new provisions will be unduly harsh on all employers, not just the ‘rogue’ employers. There has also been criticism that the Bill uses a ‘stick’ rather than a ‘carrot’ approach by focussing on the increased fines and removal of the s.59 ‘evidentiary hurdle’. Liberal MP Caroline Schaefer proposed an amendment which would replace the phrase “act in a manner that may seriously endanger the health or safety of another person” with the phrase “creates a substantial risk of death or serious harm”. The government argued that such phrasing would “still inevitably require a focus on the outcome of the workplace accident, that is, the resultant harm that has been caused to a person or persons rather than the focus on the seriousness of the conduct and the risk that was created by the behaviour.” The government has stressed the fact that the fundamental OHS principles are based on the concept of exposure to risk regardless of whether the risk resulted in actual harm.

Caroline Schaefer’s amendment was carried and the Bill (as amended) was passed by the Legislative Council on 23rd October 2007. The new provisions came into effect on 1st January 2008. The maximum fine for an offence under the Act is now $600,000.