WHS Update

SafeWork NSW – “Johnny on the spot” – New power to issue on the spot fines against individuals and corporations

Employers need to be aware that following amendments to the Work Health & Safety Regulation 2017 (the Regulations)[1], SafeWork inspectors have been granted additional powers to issue on the spot penalty notices against persons conducting business or undertakings (PCBU’s) for both a failure to notify the Regulator of a notifiable incident arising out of the conduct of its business or for failing to display a copy of an improvement, prohibition or non-disturbance notice issued by SafeWork.

The on the spot fine is $6,000.00 for a failure to notify an incident. PCBUs may still be prosecuted for these offences by way of the issue of a Summons by the Regulator in the appropriate Court for maximum penalties of $10,000.00 for an individual and $50,000.00 for a body corporate.

Businesses and their Officers should ensure that in the event that they have an incident in the workplace, they obtain immediate legal advice about whether it is a notifiable incident under the Work Health & Safety Act 2011 (NSW) (the Act) and the Regulations, as they may now be issued with either on the spot fines or prosecuted for breaches as indicated.

In addition, Businesses and their Officers should also be aware that if they are issued with improvement, prohibition or non-disturbance notices, a failure to display those notices can result in on the spot fines of $3,000.00, or if under the existing powers of prosecution by way of Summons, in the case of an individual, a maximum penalty of $5,000.00 and in the case of a body corporate a maximum penalty of $25,000.00.

In the event your business is issued with any notices by SafeWork, you should seek immediate legal advice as to an appropriate response in terms of your obligations and if the notice and its obligations can be challenged.

Other proposed Amendments to the Act and Industrial Manslaughter in other States & Territories

The latest changes to the regulations go hand in hand with the current Bill[2] being considered before NSW Parliament to amend the Act to include a new Category 1 offence of Gross Negligence, ban insurance and indemnities for penalties and increase and index penalties under the act to the CPI. For information regarding this Bill see our previous article.

While NSW moves forward with its own amendments to the model, Work Health & Safety legislation has fallen short of introducing any industrial manslaughter legislation which has been occurring in other states and territories.

Labor government states and territories have chosen to implement their own legislation as to the creation of industrial manslaughter offences with varying maximum penalties, which once again brings into question the use of National harmonised safety legislation and a model act.

Western Australia, as part of its Work Health & Safety Bill 2019,  is seeking to create two separate manslaughter offences with a maximum of 20 years goal and $5 million in penalties for individuals and $10 million for bodies corporate who are found guilty of industrial manslaughter which involves engaging in conduct knowing that the conduct is likely to cause the death of an individual and who acted in disregard of the likelihood of death.

Victoria were the next to act by passing the Workplace Safety Legislation Amendment (Workplace, Manslaughter & other matters) Bill 2019 on 26 November 2019 which will commence operation on 1 July 2020. It introduces maximum fines of $16,522,000.00 for bodies corporate and gaol terms of up to 20 years for company officers negligently causing the death of a work or a member of the public

The Northern Territory on 27 November 2019, passed the Work Health & Safety (National Uniform Legislation) Amendment Bill 2019 which introduced the Work Health & Safety offence of industrial manslaughter with penalties of imprisonment for life for individuals and penalties of $10,205,000.00 for bodies corporate. Queensland and the ACT already have existing industrial manslaughter offences.

It remains to be seen whether the remaining states and the Commonwealth adopt a similar approach, however given that they are currently governed by Coalition Governments this would appear to be unlikely in current government terms.

SafeWork Australia releases report into workplace fatalities

SafeWork Australia has released a report into the number of work-related fatalities across Australia for 2018.[3] The report indicates that most fatalities occurred in the transport and warehousing, agriculture and forestry and construction industries.

In 2018 Nationally there were a total of 144 workers fatally injured at work with a rate of 1.1 deaths per 100,000 workers. Overall there were 38 deaths in the transport industry, 37 in the agriculture and forestry industries and 24 in the construction industry. In addition to the figures with respect to Australian workers the report states that 62 members of the public were killed by the actions of a worker or in a workplace incident.

The findings of the report reflect the serious risks associated with the transport, agriculture and construction sectors. All Businesses and their Officers operating in those industries should ensure they have proper Work Health & Safety management systems and are compliant with legislative requirements. This is particularly the case given that the Regulator’s enforcement matrix provides for prosecution to occur in cases where there are workplace fatalities.  Given the new offences and penalties regime, the risks of large penalties and custodial sentences for individuals associated with a serious workplace incident are significant.

Roberts Legal is able to assist Companies and their Officers in ensuring that they have compliant systems through various fixed fee packages and compliance products.

Drug & Alcohol Policy – Dismissal for drinking two beers before work overturned

In a recent case which highlights that while employers have the best of intentions in regard to drugs and alcohol in the workplace, they need to ensure that any policies have a consistent approach and managers enforcing those policies have a full understanding of how they operate.

The Fair Work Commission’s Deputy President, Geoffrey Bull, has agreed with an employee of Circo Australia Pty Limited, who operate the Villawood Immigration Detention Centre, that his termination as a Detainee Service Officer was unfair, following his dismissal for consuming two beers before commencing his unscheduled shift.

In the case of Morcos vs Circo Australia Pty Limited [2019] FWC7675 (21 November 2019), Deputy President Bull considered that the employee, Mr Morcos, had been unfairly dismissed when he was terminated for attending the workplace after drinking alcohol when he knew that the site’s blood alcohol limit was zero. The worker initially told his employer that he had only had one beer at lunchtime before commencing his shift at 6:00pm but later admitted that he had a second beer at 3:30pm.

The worker’s blood alcohol level at the time of testing was beneath the driving limit of 0.05 and he registered a blood alcohol reading of 0.037. Notwithstanding that Circo had a “zero tolerance” approach to workers working under the influence of drugs or alcohol, Deputy President Bull found that as the employer’s policy provided that any reading between 0.01 and 0.05 resulted in a worker being stood down and given a formal warning, Mr Morcos should remain employed. The actions of the manager in terminating Mr Morcos for serious misconduct was inconsistent with the policy.

The Deputy President Bull found that the employer’s policy did not state that knowingly attending work having consumed alcohol, was considered to be serious misconduct and there were inconsistencies in its application and approach. Accordingly, the Commission ordered that Mr Morcos be reinstated to his former position but declined to make an order for compensation for lost wages during the time between his termination and reinstatement.

Whilst this is an employment related matter, it illustrates how Work Health & Safety policies such as those dealing with drugs and alcohol, can result in employment and industrial consequences. Businesses should be aware that there are risks associated with drugs and alcohol in the workplace and should have appropriate policies and testing regimes, particularly in hazardous industries. Businesses that already have existing drug and alcohol policies, should review and update policies regularly and ensure that they consistent throughout and enforced appropriately, as reliance on badly drafted or enforced policies in a disciplinary / termination context can have unwanted consequences.

By Jeremy Kennedy,
Special Counsel

[1] Work Health & Safety Amendment (Miscellaneous) Regulation 2019

[2] Work Health & Safety Amendment (Review) Bill 2019

[3] Work-related Traumatic Injury Fatalities, Australia 2018 – SafeWork Australia