1. INTRODUCTION

Updates and background for this project (Digest)

• This review
• Responding to the terms of reference
• Our approach
• A note on terminology

THIS REVIEW

1.1 In June 2005 the Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 (NSW) inserted Part 2A into the Occupational Health and Safety Act 2000 (NSW). Within Part 2A, s 32A created an offence of reckless conduct causing death at a workplace. The Criminal Appeal Act 1912 (NSW) was amended to allow appeals from convictions under s 32A to the Court of Criminal Appeal.

1.2 In the savings and transitional provisions of the Occupational Health and Safety Act 2000 (NSW), Parliament required the New South Wales Law Reform Commission to inquire into, and report on, the effectiveness of these provisions.¹

1.3 In conducting its inquiry, the Commission is to have particular regard to the following matters:²

(a) whether the relevant provisions are achieving their aims and objectives;

(b) whether the relevant provisions are appropriate to achieve those aims and objectives;

(c) the incidence and circumstances of workplace deaths in New South Wales since the enactment of the relevant provisions and whether the relevant provisions have contributed to a reduction in workplace deaths in New South Wales;

(d) any deficiencies with the relevant provisions that have become apparent since their enactment; and

(e) provisions relating to workplace deaths in other Australian jurisdictions and their operation and effectiveness.

1.4 As required by our terms of reference, we commenced this review early in June 2008, that is, within three years of the commencement of Part 2A.³ At that time, it was our intention to publish a Consultation Paper that would identify the issues arising and that would provide a basis for consultation with relevant stakeholders. As envisaged by Parliament, we proposed to consult with unions, employees, employers and other stakeholders, and to conduct such public hearings as were necessary to enable us to resolve the issues raised in the review.⁴ It soon became apparent, however, that it was likely to be pointless to respond to the reference in this way. The validity of this conclusion had to await, and was confirmed by, the release in February 2009 of the final report of the National Review into Model Occupational Health and Safety (OHS) Laws.⁵

1.5 There are two reasons that make it impossible to respond to this reference in the way that Parliament envisaged in 2005:

• There is a lack of empirical evidence concerning the operation of Part 2A; and
• The landscape of occupational health and safety (“OHS”) laws, of which Part 2A forms a part, is now in the process of significant change, making the terms of reference potentially redundant.

1.6 At this time, it is impossible to respond to those items in the terms of reference that require us to determine whether the 2005 amendments are achieving their objectives (even assuming that those objectives can be clearly identified);⁶ whether the amendments have contributed to a reduction in workplace deaths; and what deficiencies have become apparent in the legislation since the amendments. The reason is that the empirical evidence necessary to support such inquiries is simply unavailable.

1.7 Statistics do show a slight reduction in the number of workplace deaths in the period immediately after the enactment of the 2005 amendments. During 2006 and 2007, WorkCover reported 69 workplace fatalities in comparison with 75 during the period 2005 to 2006.⁷ Any association between these figures and the 2005 amendments is, however, purely speculative. In particular, it is difficult to assess the impact of s 32A of the Occupational Health and Safety Act 2000 (NSW) because there have to date been no prosecutions under it.

1.8 There have, of course, been a number of fatal workplace incidents since 15 June 2005 when the amendments came into force. For example, between that date and 31 March 2008, the number of such incidents notified to, and investigated by, WorkCover was 111.⁸ To date, only a few prosecutions arising out of these incidents have been reported.⁹ The prosecutions have not relied on s 32A but on contraventions of the more general duties of an employer relating to health, safety and welfare at work under the Occupational Health and Safety Act,¹⁰ the widest of which is the duty of an employer to ensure the health, safety and welfare at work of employees.¹¹ The reported prosecutions all involved contraventions of the legislation that were in the mid to upper range in terms of their objective seriousness and that resulted in fines varying from $85,000 to $214,000.

1.9 The facts of these cases may not have persuaded prosecutors that there was a basis for a finding that the defendant was “reckless as to the danger of death or serious injury” as required by s 32A(2)(c) of the workplace deaths offence. Recklessness does not, however, have to be proved where the defendant is prosecuted for contravention of the general duties in OHS law. The general duties in OHS law create absolute liability offences,¹² which can easily be applied in the case of corporations¹³ and which are informed by an existing body of case law. The offences are capable of encompassing conduct at the high end of a scale of objective seriousness,¹⁴ which is aggravated where the risk in question is reasonably foreseeable,¹⁵ or, indeed, foreseen.¹⁶ Moreover, the prosecution of a death case under the more general duties in the legislation has the advantage that it can effectively encompass, and result in, the attribution of liability to directors and managers of the corporation.¹⁷

Developments in OHS laws since 2005

1.10 On 4 April 2008, the Deputy Prime Minister and Minister for Employment and Workplace Relations, the Hon Julia Gillard MP, announced a national review into model Occupational Health and Safety (OHS) Laws (the “National Review”). The Australian government appointed an advisory panel to conduct the review and to recommend to the Workplace Relations Ministers’ Council the optimal structure and content of model OHS legislation. The panel was specifically asked to inquire into, and make recommendations on:¹⁸

• duties of care, including the identification of duty holders and the scope and limits of duties;
• the nature and structure of offences, including defences;
• scope and coverage, including definitions;
• workplace-based consultation, participation and representation provisions, including the appointment, powers and functions of health and safety representatives and/or committees;
• enforcement and compliance, including the role and powers of OHS inspectors, and the application of enforcement tools including codes of practice;
• regulation-making powers and administrative processes, including mechanisms for improving cross-jurisdictional co-operation and dispute resolution;
• permits and licensing arrangements for those engaged in high-risk work and the use of certain plant and hazardous substances;
• the role of OHS regulatory agencies in providing education, advice and assistance to dutyholders;
• other matters the review panel identifies as being important to health and safety that should be addressed in a model OHS Act.

1.11 The National Review’s comprehensive investigation of OHS laws resulted in the formulation of recommendations designed to form the basis of a model OHS law that would apply nationally. NSW is committed to the harmonisation of OHS laws across Australia on the basis of the recommendations of the National Review.¹⁹ It follows that the future of Part 2A must depend on the place that a workplace deaths offence has in the model national law. If national model OHS laws are enacted, there would be no room for NSW to retain Part 2A if it forms no part of the national scheme.

1.12 The approach of the National Review to workplace deaths is found in its overall approach to non-compliance with duties of care in OHS legislation.²⁰ While recommending that offences for breaches of duties under OHS legislation should continue to be absolute liability offences (qualified by reasonable practicability, due diligence or reasonable care),²¹ the Review nevertheless favoured an approach of graduated enforcement of the duties under the legislation, penalties being related to non-compliance with the duty, the culpability of the offender and the level of risk (not merely the actual consequences of the breach).²² The Review proposed three categories of offences,²³ of which Category 1 is relevant to workplace deaths. It would provide that “in a case of very high culpability (involving recklessness or gross negligence) in relation to non-compliance with a duty of care where there was a serious harm (fatality or serious injury) to any person or a risk of such harm, the highest of the penalties under the Act should apply, including imprisonment for up to five years”.²⁴ This recommendation met the concern of the Review that the creation of a specific workplace deaths offence would focus on the consequences of non-compliance with a duty of care rather than on the culpability of the offender, which would run the risk that “egregious, systemic failures to eliminate or control hazards and risks might not be adequately addressed”.²⁵ The Commission shares this concern.

1.13 If the approach of the National Review is adopted, there would not appear to be any need for a separate workplace deaths offence in OHS legislation, such as the offence in s 32A. The existence of recklessness and the fact of a fatality would result in non-compliance with the duty being a Category 1 offence. The maximum fine for such an offence would be $3 million in the case of a corporation and $600,000 in the case of an “officer” of the corporation. An “officer” of the corporation would also be liable for imprisonment of up to five years. Except for the maximum term of imprisonment, these penalties are significantly higher than those currently provided in Part 2A.

1.14 Moreover, the liability of an “officer” of the corporation would be wider in the model law than it is in the current Part 2A, where liability will only attach to directors and managers who personally engaged in reckless conduct that substantially contributed to the death in question.²⁶ The National Review has recommended that the model Act should “place a positive duty on an officer to exercise due diligence to ensure compliance by the entity of which they are an officer with the duties of care of that entity under the model Act”.²⁷ “Officer” would refer to any person who acts for, or influences or makes decisions for the management of the entity;²⁸ and the “standard of ‘due diligence’ is well known by those who would be sufficiently directing or influencing the decisions of the company as to be defined as ‘officers’”.²⁹

OUR APPROACH

1.15 In view of the factors identified in this chapter, we have approached this review on the following bases:

• Part 2A of the current law will be replaced by the scheme for the enforcement of OHS obligations recommended by the National Review when NSW adopts the model OHS legislation. This legislation will not provide for a separate workplace deaths offence.
• If for some reason national model legislation does not eventuate, a comprehensive review of Part 2A will need to await the availability of empirical evidence that deals with the operation of Part 2A in the context of OHS law. This evidence is not currently available. Independently of that evidence, Chapter 4 of this paper analyses the difficulties to which the current Part 2A gives rise. Chapters 2 and 3 of the paper lay the basis for that analysis by outlining the context and background of Part 2A.
• This leaves open the question whether or not NSW should facilitate the prosecution of workplace death offences in the general criminal law, either as manslaughter or as a new and specific offence of “industrial manslaughter”. Chapter 5 draws attention to the issues that this raises, while recognising that the resolution of those issues is beyond our terms of reference.
• To respond as fully as we can to our terms of reference, we provide an Appendix that surveys the law in other jurisdictions.

A NOTE ON TERMINOLOGY

1.17 The terms “industrial manslaughter” and “corporate manslaughter” are frequently used in literature surrounding workplace deaths offences. Section 32A does not use either term. The offence is named in the Occupational Health and Safety Act 2000 (NSW) as “reckless conduct causing death at workplace by person with OHS duties”.

1.18 “Industrial manslaughter” usually refers to manslaughter or deaths that occur in a workplace setting. We confine its use in this paper to the prosecution of workplace deaths under the general criminal law, rather than under OHS legislation. Some consider “corporate manslaughter” to be limited to workplace deaths caused by corporations,³⁰ while others define corporate manslaughter as broadly encompassing deaths caused by corporations in workplaces and any other context.³¹ The former understanding of corporate manslaughter is used in this Paper, which is concerned solely with workplace deaths. The prominence of corporations’ involvement as employers in the workplace means that issues of corporate liability are central to any workplace deaths offence. Thus, corporate criminal liability for deaths must be considered in the context of examining the effectiveness of s 32A.

1. Occupational Health and Safety Act 2000 (NSW) sch 3 pt 5, cl 22(1).

2. Occupational Health and Safety Act 2000 (NSW) sch 3 pt 5, cl 22(2).

3. The relevant amendments commenced operation on the date of Assent to the Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 (NSW), which was 15 June 2005.

4. Occupational Health and Safety Act 2000 (NSW) sch 3 pt 5, cl 22(3).

5. See para 1.10.

6. See para 4.3-4.5.

7. WorkCover NSW, Statistical Bulletin 2006/07: New South Wales Workers Compensation, Publication No 5543.

8. Letter to the Commission dated 6 May 2008 from Mr Jon Backwell, Chief Executive Officer, WorkCover.

9. Including WorkCover Authority of New South Wales (Inspector Michael Salmon) v Provimi Australia Pty Ltd [2008] NSWIRComm 182; WorkCover Authority of New South Wales (Inspector Davidson) v St Mary’s Tyre Service (NSW) Pty Ltd [2008] NSWIRComm 226; WorkCover Authority of New South Wales (Inspector Robert Mayell) v Bilfinger Berger Services-Roads Pty Ltd [2009] NSWIRComm 10.

10. Occupational Health and Safety Act 2000 (NSW) pt 2 div 1.

11. Occupational Health and Safety Act 2000 (NSW) s 8(1).

12. See the discussion in WorkCover Authority of New South Wales (Inspector Patton) v Western Freight Management Pty Ltd [2008] NSWIRComm 217, [4]-[26] (Boland J President), and authorities there cited.

13. See para 2.4.

14. See, eg, WorkCover Authority of New South Wales (Inspector Maurice Vierow) v Barclay Mowlem Construction Ltd [2008] NSWIRComm 1 (multiple system failures resulting in fine of $300,000).

15. See especially Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29, [82].

16. See especially WorkCover Authority of New South Wales (Inspector Barbosa) v McDonald’s Australia Ltd (2003) 125 IR 270, [109].

17. Occupational Health and Safety Act 2000 (NSW) s 26. For a recent example, see WorkCover Authority of New South Wales (Inspector Richard Mulder) v Girotto Precast Pty Ltd and Giuseppe Girotto [2008] NSWIRComm 94.

18. See R Stewart-Crompton, S Mayman and B Sherriff, National Review into Model Occupational Health and Safety Laws: First Report to the Workplace Relations Ministers’ Council (October 2008), iii; R Stewart-Crompton, S Mayman and B Sherriff, National Review into Model Occupational Health and Safety Laws: Second Report to the Workplace Relations Ministers’ Council (January 2009) (“National Review”), iii.

19. See “National safety laws will ‘cost’ NSW”, Sydney Morning Herald, 19 May 2009, 5.

20. See National Review, pt 3.

21. National Review, Recommendation 52.

22. National Review, Recommendation 51.

23. National Review, Recommendation 57.

24. National Review, Recommendations 56, 59. Compare Work Safety Act 2008 (ACT) s 34 (making the offence of failing to comply with a safety duty and recklessly causing serious harm punishable with a penalty of imprisonment up to 7 years, the longest custodial sentence in any Australian jurisdiction’s OHS legislation).

25. National Review, [11.31].

26. See para 4.23-4.30.

27. National Review, Recommendation 40.

28. National Review, Recommendation 41.

29. National Review, [8.29].

30. J Clough, “Will the Punishment Fit the Crime? Corporate Manslaughter and the Problem of Sanctions” (2005) 8 Flinders Journal of Law Reform 113, 114.

31. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), [12.3]-[12.4].