The burden of proof will be shifted on to prosecutors in occupational health and safety claims under a national model,
The burden of proof will be shifted on to prosecutors in occupational health and safety claims under a national model, according to the National OHS Review Panel’s first report.
The change relates to the difficulties in proving “reasonable practicability” – the consideration of reasonable actions in a circumstance – with the paper recommending a definition of the term be built into the offence.
When there is no clear application of reasonable practicability within OHS legislation a duty holder is placed in immediate breach if there is any residual risk of injury.
According to Deacon’s Partner Michael Tooma, the report takes a “sensible” view, and says it will provide guidance to duty holders in achieving legislative compliance because case law is not easily accessible to duty holders.
“The business community will welcome the fact that the onus of proving a failure to meet the standard of due diligence will be on the prosecution under the report’s suggested approach,” says Tooma.
“The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence.”
He says the change is a win for Queensland and New South Wales, who have long called for change, and previously did not have access to such laws.
The definition will be modelled on that currently used in the Victoria Occupational Health and Safety Act 2004, but will go further to provide greater clarity around the need to weigh up the various elements for doing what is reasonably practicable.
This includes the likelihood of the hazard or risk, what a person in their position ought reasonably to know, risk elimination and costs of reducing hazards
The Australian Chamber of Commerce and industry has also welcomed the move.
ACTU not happy with changes
However unions want the model to swing the other way and base the issue of “reasonable practicability” on Queensland and New South Wales law.
ACTU Assistant Secretary Geoff Fary has raised concerns workers will lose out because there are already laws in Queensland and NSW that put the onus of proof on employers when they allegedly break the law.
The union also wants the duty of care to be tightened.
The report recommends a duty of care imposed on anyone working in a business or undertaking who may be put at risk to their health and safety.
This is intended to cover new working relationships beyond the traditional employer and employee relationships, circumventing the need to refer to the employment relationship.
Those subjected to duties of care under a uniform law include those in control of workplace areas and designers and manufacturers of plant, substances and structures.
Builders, erectors and installers of structures will also be held responsible as well as suppliers and importers of plant, substances and structures.
The recommendations also extend to include OHS service providers, officers, workers and other persons in the workplace.
Penalties for non-compliance would also increase, with offences to administered against a three-tier approach.
Under the system fines for corporations and individuals would range from maximum of penalties of $500,000 and $100,000 for the lowest category and $3 million, $600,000 or up to five jails for the worst cases.
Offences would also fall strictly under the criminal jurisdiction, with the prosecution to bear the criminal standard of proof for all elements of the offence.
Fary says he is pleased the report has recognised breaches of OHS laws are criminal rather than civil matters.
According to Tooma this would make OHS penalties comparable with penalties for breaches of environmental legislation in Australia.
In light of higher penalties, no further penalties are recommended for repeat offenders.
The report has been officially endorsed by Council of Australian Government (COAG) members.
However, Tooma says it remains to be seen whether it will actually be taken up.
The National OHS Review Panel’s second report is due to be provided to the Workplace Relations Ministers at the end of January 2009.