Employer proposal on NSW fatality laws

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Employer proposal on NSW fatality laws

Australian Business Limited (ABL) has put forward a five-point plan to make the proposed NSW workplace fatalities legislation acceptable to employers.

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Australian Business Limited (ABL) has put forward a five-point plan to make the proposed NSW workplace fatalities legislation acceptable to employers.

The legislation could be given the green light by the business community if the proposed five point amendment plan is accepted by the State Government.

The plan

An amended Draft Bill on Workplace Fatalities is expected to be debated in State Parliament next month.

‘Australian Business Limited has consistently said we will support legislation that brings rogue employers to account,’ said Mark Bethwaite, Chief Executive of ABL.

‘This five point plan deals with the very real concerns of employers regarding the existing Draft Bill.’

The plan wants the legislation amended so it:

  • Requires that prosecutions are only launched when employers act ‘recklessly’ and endanger the life of another;

  • Provides only WorkCover and the Crown with the right of prosecution (thereby ensuring no union right of prosecution);

  • Removes ‘bounty hunter’ incentives for trade unions to force prosecutions;

  • Ensures a right of appeal when custodial sentences are applied; and

  • Introduces a practical application of an employer’s ‘duty of care’.

‘Business has very real concerns about the current draft legislation,’ Bethwaite said.

‘It provides no distinction between unacceptable rogue behaviour and responsible employers who have the misfortune of experiencing a workplace fatality at their workplace.

‘The plan specifically ensures that workplace fatality prosecutions are only launched when there is reckless behaviour that has resulted in the loss of life. As the legislation currently stands, a bank manager could be charged for a workplace fatality if a teller was murdered in an armed hold-up.

‘The Draft Bill is unacceptable as it allows for trade unions to lay workplace fatalities charges against any manager or employer, provides trades unions with 50% of any fines from successful prosecutions, and provides no right of appeal for anyone receiving a custodial sentence.

‘When the penalties for a workplace fatality include up to 5 years in gaol and up to $1.65 million in fines, it is important that the Government gets the legislation right.’

Draft Bill too broad

Bethwaite said that in a Ministerial Statement to the House announcing the release of the proposed Workplace Fatalities Bill, the Minister for Industrial Relations John Della Bosca said:

‘…hard-working, responsible employers have nothing to fear from this Bill. The Bill is aimed at the minority - the rogues whose indifference to health and safety results in death.’

‘However, the proposed objectives of the Bill as stated by the Minister on the day it was released do not currently reconcile with the actual content of the Bill,’ Bethwaite said.

‘In the unfortunate eventuality of a workplace fatality arising, the proposed laws would expose responsible employers, management and Board Directors to the new penalty regime - even where through no fault of their own, they experience a fatality at their workplace.

‘The problem is that the proposed new offence is triggered by the fact of a workplace fatality, not by serious disregard for safety by an employer or on the part of a Manager or Director.

‘ABL has recommended to the government that the focus of the proposed laws be changed so that they are only applied where it is established the employer has been reckless or grossly negligent.’

Individuals are concerned

Bethwaite said the plan put forward by ABL provided a very real solution to the concerns of business. It also recognised and supported the intent of the Government’s plan, namely that employers who engage in rogue behaviour are punished.

‘This plan strengthens the draft legislation by ensuring it targets those employers whose behaviour is reckless,’ he said.

Bethwaite revealed that ABL had recently received a letter from an OHS Manager of a member company raising concerns about the proposed laws, but also commenting that from a personal perspective she had concerns about continuing in a role where, notwithstanding the best efforts and best practice OHS standards, she may well be prosecuted, fined or sent to jail due to a workplace fatality she had absolutely no control over.

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