Your Criminal Liability Under New Work Health and Safety Laws

Criminal prosecution of Directors possible in new Work Health and Safety Laws

The Work Health and Safety Act 2011 (ACT) (‘the Act’) came into force as of 1 January 2012 and significantly increases the risks for those responsible for managing businesses. The new laws expand the range of employers, organisations and employees with managerial responsibilities caught by the Work Health and Safety laws and also increases the people that a duty of care is owed to.

The major change is the level of liability and definition of “Officers” within any organisation that is undertaking or carrying on business within the ACT. Officers now include senior management, board members, directors and some levels of senior staff.

Directors, board members and employers undertaking any form of business within the ACT should all be aware that breaches of Work Health and Safety are now covered in a criminal regime, with maximum penalties for serious breaches being individual financial penalties of up to $600,000.00 and/or goal terms of up to 5 years. As the new laws attach personal liability to directors and senior level employees, internal policies to have any penalties paid by the company employer and relevant insurances may be deemed void if so viewed as contempt by the legal system. The fact that breaches are now criminal offences will have ongoing ramifications as criminal charges can disqualify current Directors from holding management positions into the future.

The purpose of the new act is to bring the ACT into line with the national harmonisation of the Work Health and Safety laws. These new Acts across all state jurisdictions put more onus on management to take a proactive role in mitigating risk within the work place, and putting into place procedures and policies that will protect workers and the public from any risks created by their business.

Given the nature of this duty and the scope of ‘due diligence’ under the Act, “Officers” of companies cannot simply rely on the fact that a company has a Work Health and Safety Policy in place. They are now required under the new legislation to take reasonable steps to ensure a personal knowledge and understanding of Work Health and Safety matters within the organisation and the operations put in place to minimise any potential hazards and risks. It is therefore important that any internal policies support a system where safety concerns are not only documented and attended to, but senior management is personally made aware of the concern.

Importantly the breadth of the duty of care under the Act extends to protecting volunteers, contractors and students on placement within work places and can extend as far to the general public who are exposed to the activities of your business even outside of work hours and work premises.

The extensive scope of liability means that all businesses should be reassessing their current procedures in how they deal with and delegate Work Health and Safety risks within their business. While existing OH&S policies and procedures will have to be amended to comply with all of the procedural requirements of the new legislation the biggest challenge of employers will be to ensure that their senior management and directors are fully informed to avoid the possibility of significant penalties.

Things that could help compliance in this nature would include the following:

Review all OH&S manuals and procedures and ensure they comply with the new Work Health and Safety Laws;
• Receive briefings from Work Health and Safety professionals;
• Ensure all Work Health and Safety Representatives and officers within your organisation receive appropriate and up to date training;
• Ensure your company is devoting enough time and money to comply with legislation;
• Ensure best practices are enforced within your workplace and documented;
• Ensure that Directors and managers are receiving frequent, accurate and reliable information regarding the state of Work Health and Safety within the workplace; and
• Ensure that independent inquiries are made by officers of your organisation where appropriate.

This is a major reform of Work Health and Safety legislation and it is critical that all businesses remain proactive in their procedures and policies to ensure that they do not breach their obligations. If you require any further information regarding Work Health and Safety compliance, and steps that your business should undertake to ensure compliance please do not hesitate to contact Bradley Allen Lawyers.