Occupational health and safety
CONDUCT, CULTURE, COMMUNITY STANDARDS AND RAMIFICATIONS FOR WHS ENFORCEMENT The public debate on the sufficiency of penalties in WHS prosecutions was noted in the Boland Report released in February 2019. This debate in the WHS space occurred in parallel with the broader discussion on community expectations of corporate culture and corporate criminal penalties that we saw in the Financial Services Royal Commission. In 2019 and beyond, we expect to see more serious ramifications for organisations, officers and workers who breach community standards. There is currently a feeling in the community that penalties awarded by courts for WHS offences have been too low when compared to the objective seriousness of the offences and the devastating consequences suffered by individuals and the impact on their families. When combined with the community view that penalties imposed in different jurisdictions lack consistency, we expect in coming years to see the adoption of model sentencing guidelines. These guidelines will provide parameters for courts when imposing penalties and likely see an increase to the scale of penalties generally. In addition, judges have recently expressed interest in imposing alternative non-monetary penalties for breaches of health and safety laws, particularly in NSW. These include making adverse publicity orders, restoration orders, work health and safety project orders and undertakings and training orders. We are already starting to see such
This substantially eclipsed the previous record in 2017 of AUD 1.5 million by Borg Manufacturing Pty Ltd. This caused the Australian Capital Territory to account for 60% of the total value of EUs entered in 2018 compared with just 4% in 2017. While the regulators have a general policy not to enter into an EU in the context of a fatality, 2018 also saw the South Australian regulator enter into two EUs in respect of the same fatality. We have also seen WorkSafe Victoria requiring more innovative initiatives under EUs in Victoria with a focus on requiring initiatives related to safety leadership, culture, effective communication and worker engagement. The trends outlined in our 2018 Regulatory Trends Report on the exercise of police powers and the need to take improvement and prohibition notices seriously continue to be trends into 2019. On the exercise of police powers, the charges comprising two counts of manslaughter under the Criminal Code 1899 (Qld) against Claudio D’Alessandro (the construction manager at the time of the Eagle Farm Racecourse fatalities) are next due before the Court for further directions on 16 August 2019. The first successful Category 1 prosecution against Cudal in 2018 (discussed above) is also an example demonstrating how regulators are relying upon the historical non-compliance of organisations evidenced through improvement and prohibition notices as the basis for establishing recklessness to risk. REGULATORY TRENDS
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