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Industrial manslaughter alternative

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Near the end of 2004, two critical Occupational Health and Safety developments took place in NSW. One was a significant change to the OH&S Act and the second, was a water-shed case law development.

The change in the law provides little opportunity for advice and guidance save to say CEOs had better heed the warnings contained in the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004.

The case law changes result from a test case involving a semi-trailer driver who crashed his vehicle on the Pacific Highway after having been at the wheel for two days without sleep. This case came before Justice Walton in the NSW Industrial Relations Commission on 21 October 2004.

The driver, who had taken methamphetamine in order to stay awake, was struggling to adhere to a punishing time-table imposed by his employer.

Justice Walton made the point that the employer had no policy on rest breaks or hours, failed to ensure rosters allowed enough time for breaks and failed to provide training. The judge found the employer had failed to provide safe work conditions for the driver as required in section eight of the OH&S Act, and moreover found the employer had caused the driver’s death.

The employer was found guilty in the first prosecution of its kind by Workcover NSW. The penalty is to be determined at a later date.

In circumstances such as these, the potential fine under the new Draft Bill could amount to $110,000 or two years imprisonment in the case of the driver’s boss. The previous maximum penalty was $55,000.

The repercussions of the judgement in this case place pressure on every company to maintain existing safety management systems (SMS), or to risk the consequences.

The Amendment Bill sets out the possibility of even higher penalties. Where a worker’s death is caused by a CEO, for example, the penalty can be up to five years imprisonment. If a corporation is at fault, a fine of up to $1.65m can be imposed for a repeat offender.

The duties under Division 1, Part 2 of the OH&S Act 2000 include, among others, “general duties” of employers which cover “safe working“ conditions.

Employers are required to establish an SMS according to the OH&S Act and associated Regulations. Changes to the law, changes to technology and work practices must be reflected in the SMS. This is the equivalent of continuous improvement required by ISO quality standards.

The implications for employers could not be clearer: OH&S policies drawn up five years ago and never re-visited; safe work procedures never amended or improved; and training lists never implemented are magnets for the penalties which can be imposed under the new draft Bill.

SMS improvements

To continuously improve the SMS as required by law, companies can take several actions to keep up to date with developments and make appropriate changes.

To keep up to date with new health and safety laws and new developments in industry, managers should subscribe to a variety of technical journals. Useful sources include Workcover’s Quarterly; Manufacturers’ Monthly and Safety First; an industry specific trade journal; the Australian Standards’ monthly publication sent to ASA members and perhaps finally Corporate Risk Journal published by ARIMA, the Risk Managers’ Association.

Systematically trawl through these publications and extract OH&S developments and new technology of relevance to your processes. From these publications, proceed to research on the Internet for more specific information. Start with local state Workcover or Worksafe websites and follow the links to the equivalent sites in other states for more information.

While OH&S legislation varies between states, other state’s regulators can provide good guidance information in areas where often there is no alternative. Record in a register matrix all of these searches.

Develop a recording system to evidence research work. Normal work-day duties would preclude reading and researching all of materials at one or even several sittings, hence it is important to record progress. This recording is of itself evidence of due diligence.

If changes have been made to legislations, company technology or work practices, the existing OH&S policy should be examined since this is the foundation of the SMS. Ask whether the policy needs an addition or alteration. Are supplementary policies required? Examine the company’s standard operating procedures or safe work procedures that fall under the umbrella of these policies.

Since OH&S must now be managed according to risk management principles, consider whether foreseeable risks can be identified, assessed and controlled adequately in view of the changes identified. Also consider whether the changes to the law, technology or work practices impact on current documentation.

Workers should also be consulted about the change. The consultation process is mandatory and managers should ensure they have accommodated workers’ concerns. Adequate mechanisms should be put in place for resolving conflict arising in the consultation process.

Finally training programs should be examined to determine whether they are still relevant following legislation, operation or technology changes. Safe work procedures should be similarly assessed, along with risk controls or inspection check lists.

Following the steps outlined above can demonstrate a duty of care and provide protection against prosecution to individuals and corporations.

While the NSW government has flagged its intention not to travel down the same path as Victoria as regards criminal manslaughter, a conviction of “industrial manslaughter” is not a tag any company executive would wish to wear, no matter what words are used to describe the crime.

* Ray Schaffer is the Principal Consultant with RMH Schaffer and Co . Contact 02 9878 0613 or visit www.environmentdiy.com.au.

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