7.9 – Occupational Health and Safety

7.9.1 – Employer Offences

7.9.1.1 – Bench Notes: Employer’s Duty to Employees[1]

Table of Contents

Overview of OHS Offences

Authority to Prosecute

Overview of Elements and Circumstances

Elements

Circumstances in which s21 may be breached

Employers Must Take a Proactive Approach to Safety

Elements

The accused is an employer

A risk in the working environment to employee health and safety

Risk

Employees

Working environment

Failure to take an identified measure which would have eliminated or reduced the risk

Measures and Accidents (Causation not required)

Reasonable practicability

Factors relevant to “reasonably practicability”

Level of risk

Reasonable foreseeability

Regulations, compliance codes and industry standards

Use of experts and independent contractors

Non-Delegable Duty

Circumstances in Which Section 21 may be Breached

Failing to provide and maintain safe systems of work

Failing to maintain a workplace in a safe condition

Failing to provide information, instruction or training or supervision

Independent Contractors

Scope of the duty owed to independent contractors

Sub-contractors

Content of the duty owed to independent contractors

Employee or independent contractor?

Duplicity and Multiple Offences

Overlap Between sections 21 and 23

Witness Warnings

Overview of OHS Offences

  1. Division 2 of Part 3 of the Occupational Health and Safety Act 2004(“OHS Act 2004”) creates three offences that an employer may be charged with:
  2. failing to provide and maintain a safe working environment for employees (s21);
  3. failing to monitor the health of employees or the conditions at a workplace, orto provide information to employees about health and safety (s22);
  4. failing to ensure that people other than employees are not exposed to risks to health and safety (s23).
  5. These Bench Notes address the offence created by s21. See Employer’s Duty to Non-Employees for information concerning the offence created by s23.[2]

Authority to Prosecute

  1. Proceedings for offences under the Act may only be brought by:
  2. the Victorian Workcover Authority;
  3. an inspector with the written authorisation of the Authority; or
  4. in the case of indictable offences,[3] the Director of Public Prosecutions (OHS Act 2004 s130).
  5. Authority to prosecute is not an element of an offence. Consequently, if the accused does not raise the issue, the presumption of regularity applies and the court may presume the prosecution was validly commenced (AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; AB Oxford Cold Storage Co v Arnott (2003) 8 VR 288).
  6. Where the accused raises an issue regarding authorisation, the prosecution must prove that the prosecution was validly commenced on the balance of probabilities (AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; AB Oxford Cold Storage Co v Arnott (2003) 8 VR 288).
  7. Difficulties may arise where the Victorian Workcover Authority only authorises an inspector to prosecute in a particular case (rather than providing an inspector with a general power to prosecute). Such an authorisation is not put in doubt simply because it does not, on its face, identify the specific prosecution commenced. There is a rebuttable presumption that an authorisation which is capable of applying to a proceeding does apply. To rebut the presumption, the accused must show that the apparent authorisation does not apply (AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; Berwin v Donohoe (1915) 21 CLR 1).
  8. To determine whether an inspector had the necessary authority to prosecute, the court will need to examine thewording of the written authorisation,in conjunction with the charge-sheet or indictment(AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; Berwin v Donohoe (1915) 21 CLR 1).

Overview of Elements and Circumstances

Elements

  1. The offence of failing to provide and maintain a safe working environment has the following 4 elements:

i)the accused was an employer at the relevant time;

ii)there was a risk in the working environment to employee health and safety;

iii)the accused failed to take an identified measure which would have eliminated or reduced the risk (as the case may be);

iv)it was ‘reasonably practicable’ in the circumstances for the employer to have taken those measures (DPP v Vibro-Pile [2016] VSCA 55 at [6]).

  1. There is no need to prove mens rea, and no defence of honest and reasonable mistake of fact or “due diligence” (R v Commercial Industrial Construction Group (2006) 14 VR 321; ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409).
  2. There is also no need to proveany of the elements of negligence, such as duty of care, loss or foreseeability (Dinko Tuna Farmers v Markos [2007] SASC 166).[4]

Circumstances in which s21 may be breached

  1. Without limiting the general obligation in s21(1) to provide and maintain a safe working environment for employees, section 21(2) specifies five circumstances in which an employer breaches s21:

i)failing to provide or maintain plants or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

ii)failing to make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

iii)failing to maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;

iv)failing to provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the employer’s management and control; and

v)failing to provide the information, instruction, training or supervision to employees that is necessary to enable them to perform their work in a way that is safe and without risks to health.

  1. This list is not exhaustive of the ways in which s21 may be breached (Kirk v Industrial Court of NSW (2010) 239 CLR 531).
  2. After setting out the general approach that employers must take to workplace safety, these Notes examine the elements of the offence. They then examine the operation of these deemed breach circumstances.

Employers Must Take a Proactive Approach to Safety

  1. Compliance with the obligation created by s21 requires employers to be proactive in identifying and responding to risks in a workplace (Holmes v RE Spence & Co PtyLtd(1992) 5 VIR 119).
  2. In providing a working environment that is safe and without risks to health, employers must account for employees who are hasty, careless, inattentive or who fail to take reasonable care for their own safety or who fail to comply with a prescribed safe system of work(R v Commercial Industrial Construction Group (2006) 14 VR 321 at [49]. See also McLean v Tedman (1984) 155 CLR 306; Workcover Authority (NSW) (Inspector Mulder) v Arbor Products International (Aust) PtyLtd [2001] NSWIRComm 50; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 per Dixon CJ).
  3. The jury must not consider the accused’s acts or omissions with the benefit of hindsight, but with an understanding that one of the chief responsibilities of an employer is the safety of their employees. The Act requires employers to adopt an active, imaginative and flexible approach to potential dangers in the workplace, while recognising that human frailty is an ever-present reality (Holmes v RE Spence & Co PtyLtd(1992) 5 VIR 119; WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80; R v Commercial Industrial Construction Group (2006) 14 VR 321; R v Australian Char PtyLtd[1999] 3 VR 834;Director of Public Prosecutions v Amcor Packaging Australia PtyLtd(2005) 11 VR 557).
  4. From time to time employers must search for and address hazards that may exist in the workplace. The degree of vigilance required in searching for hazards depends in part on the degree of harm that may result from those hazards. It is especially important that employers responsible for inherently dangerous workplaces search for and eliminate hazards (Rail Infrastructure Corporation v Page [2008] NSWIRComm 169).

Elements

The accused is an employer

  1. The first element the prosecution must prove is that the accused is an employer (OHS Act 2004 s21).
  2. An employer is defined as a person who employs one or more people under contracts of employment or contracts of training (OHS Act 2004 s5).

A risk in the working environment to employee health and safety

  1. The prosecution must prove that the accused’s failure to take the identified measures led to their employees’ health or safety being placed at risk (OHS Act 2004 s21; Cahill v State of New South Wales [2008] NSWIRComm 123; WorkCover Authority of NSW v Kellogg (Aust)Pty Ltd (No 1) [1999] NSWIRComm 453).
  2. There are three aspects to this requirement:

i)there must be a risk;

ii)it must have been a risk to the health or safety of employees; and

iii)the risk must have arisen in the working environment.

Risk

  1. The first part of this element requires the prosecution to identify a particular risk which is said to exist.
  2. Proof of the existence of that risk provides the factual framework against which the third and fourth elements are assessed.
  3. The prosecution does not need to show that the accused created the risk to their employees’ health and safety, or that the risk was caused solely by the accused’s failure to take the specified measures (O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361; State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303; WorkCover Authority of NSW v Kellogg (Aust)Pty Ltd (No 1) [1999] NSWIRComm 453).
  4. The risk may arise from a single act or omission, or a combination of acts or omissions (Diemould Tooling Services v Oaten [2008] SASC 197).
  5. The prosecution must identify the general class of risk that it is alleged existed (State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303; O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361).
  6. The court must not artificially confine the alleged class of risk. For example, it may not be appropriate to attempt to distinguish between a risk of harm resulting from deliberate conduct and a risk of harm arising from negligent conduct (State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303; Cahill v State of New South Wales [2008] NSWIRComm 123; O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361).
  7. When describing workplace risks, the judge should avoid the term “potential risk”, as that may refer to a risk that does not yet exist. The Act does not require employers to address non-existent risks (Morrison v Powercoal Pty Ltd (2004) 137 IR 253; Newcastle Wallsend Coal Company v McMartin [2006] NSWIRComm 339).
  8. In determining whether a risk exists (and whether a measure is necessary to reduce or eliminate that risk), the employer is not entitled to assume that employees are highly trained and experienced (DPP v Vibro-Pile [2016] VSCA 55 at [59]).

Employees

  1. The prosecution must prove that it was the health and safety of the accused’s employees that was placed at risk (OHS Act 2004 s21; Linfox & Ors v R [2010] VSCA 319).
  2. Section 21(3) defines “employee” to include independent contractors and sub-contractors. See “Independent Contractors” below.
  3. Section 21 concerns the accused’s failure to protect employees as a class. Consequently, the prosecution does not need to identify a particular employee that was put at risk by the accused’s failure to take the specified measure (Diemould Tooling Services v Oaten [2008] SASC 197).
  4. However, it will sometimes be necessary to specify (in the particulars to the offence) which people it is alleged were exposed to the risk, in order to identify the relevant class of employees (Diemould Tooling Services v Oaten [2008] SASC 197).
  5. The jury must be satisfied that the accused’s employees were placed at risk, rather than employees of some other entity (Linfox & Ors v R [2010] VSCA 319).
  6. However, in the case of a work-site involving employees of several entities, each employer will have separate duties to their employees. This is especially relevant in relation to labour-hire companies, which are responsible for the safety of their employees even when the company does not control the employee’s work site (DPP v Vibro-Pile [2016] VSCA 55 at [151]).
  7. In particular, a labour-hire company will need to take steps to take positive steps to ensure the safety of their employees and provide appropriate supervision and monitoring to ensure a safe working environment (DPP v Vibro-Pile [2016] VSCA 55 at [151]).

Working environment

  1. The risk to employees’ health or safety must have arisen in the working environment (OHS Act 2004 s21).
  2. The concept of the “working environment” is not confined to permanent premises or environments with clear physical boundaries. It covers any environment where an employee may be expected to work, and may move with the employee based on the nature of the work (see, e.g., TTS Pty Ltd v Griffiths (1991) 105 FLR 255; Gough v National Coal Board [1959] AC 698; Whittaker v Delmina Pty Ltd [1998] VSC 175; DPP v Vibro-Pile [2016] VSCA 55).
  3. A “working environment” can include:
  4. a truck driver’s truck;
  5. a construction site;
  6. the location of high voltage electrical lines;
  7. segments of road under construction; or
  8. the area in which a guided tour takes place (see TTS Pty Ltd v Griffiths (1991) 105 FLR 255; Gough v National Coal Board [1959] AC 698; Whittaker v Delmina Pty Ltd [1998] VSC 175).

Failure to take an identified measure which would have eliminated or reduced the risk

  1. The Act requires that employers “provide and maintain … a working environment that is safe and without risks to health”. This is an obligation to achieve a result (that is, the provision and maintenance of a safe working environment) (ABC Development Learning Centres Pty Ltd v Wallace (2007) 16 VR 409).
  2. However, as a matter of practice, the prosecution must identify, with sufficient precision, the particular measures that it says the accused should have taken to prevent the identified risk from eventuating (Kirk v Industrial Court of NSW (2010) 239 CLR 531; John Holland v Industrial Court of NSW [2010] NSWCA 338. See also Baiada Poultry Pty Ltd v R [2011] VSCA 23).
  3. The prosecution must identify, as part of the particulars of the offence, the measure or measures which it claims were necessary to eliminate or reduce the risk. These must be identified before the trial begins, as the adequacy of particulars does not depend on the evidence which is presented (DPP v Vibro-Pile [2016] VSCA 55 at [131]).
  4. It is not sufficient to make generic allegations that the accused failed to “guarantee” or “ensure” that a workplace was safe, or failed to take “adequate” steps (Kirk v Industrial Court of NSW (2010) 239 CLR 531; John Holland v Industrial Court of NSW [2010] NSWCA 338).
  5. The degree of specificity required will depend on the issues in the case, and whether the particulars identify the act or omission that constitutes the offence (Baida Poultry Pty Ltd v Glenister [2015] VSCA 344 at [49]; DPP v Vibro-Pile [2016] VSCA 55 at [134]).
  6. The prosecution does not, however, need to provide particulars that show the proposed actions were ‘reasonably practicable’ or, in the case of a charge involving s21(2)(e), that the actions were ‘necessary’. The question of ‘reasonably practicable’ or ‘necessity’ is a broad jury question that involves a consideration of all of the evidence (Baida Poultry v Victorian WorkCover Authority (2015) 257 IR 204; Downer EDI Works Pty Ltd v R [2017] VSCA 27 at [28]-[33]).
  7. The measures necessary to provide and maintain a safe working environment will depend on the circumstances prevailing at the workplace, the activities undertaken, the skills of the employees and the plant or substances in use (Kirk v Industrial Court of NSW (2010) 239 CLR 531; DPP v Vibro-Pile [2016] VSCA 55 at [51]).[5]
  8. In determining whether a measure is necessary, the employer is not entitled to assume that employees are highly trained and experienced (DPP v Vibro-Pile [2016] VSCA 55 at [59]).
  9. It may be alleged that the accused failed to take one specific measure or a number of identified measures (Diemould Tooling Services v Oaten [2008] SASC 197).
  10. As s21 does not rely on principles of attribution or vicarious liability, it is not necessary to identify at what level within an organisation the alleged failure occurred. It is sufficient to prove that the organisation either actively implemented an unsafe system of work, or allowed an unsafe system of work to continue (R v Commercial Industrial Construction Group (2006) 14 VR 321; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110; ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; R v Gateway Foodmarkets Ltd [1997] 3 All ER 78).
  11. The prosecution must prove that the proposed measure would have eliminated or reduced the risk. It is insufficient to establish that the measure might have improved workplace safety (Kirk v Industrial Court of NSW (2010) 239 CLR 531; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Baiada Poultry Pty Ltd v R [2012] HCA 14).

Measures and Accidents (Causation not required)

  1. It is commonly the case that OH&S prosecutions occur after an incident has occurred that has demonstrated a system of work was unsafe. In such cases, the parties and the judge must maintain a clear understanding of how the accident may be relevant to proof of the offence.
  2. The prosecution does not need to show that the accident was caused by the accused’s failure to take the necessary steps. The occurrence of an accident is of evidentiary significance only (DPP v Vibro-Pile [2016] VSCA 55 at [10]).
  3. As evidence, the occurrence of an accident may help the prosecution show:
  4. that a risk existed;
  5. the likelihood of the risk eventuating;
  6. the gravity of consequences if the risk does eventuate;
  7. whether the accused took allreasonably practicable steps to eliminate or reduce that risk (DPP v Vibro-Pile [2016] VSCA 55 at [91]. See also R v Irvine (2009) 25 VR 75; R v Australian Char Pty Ltd [1999] 3 VR 834; Whittaker v Delmina Pty Ltd [1998] VSC 175; Orbit Drilling Pty Ltd v R [2012] VSCA 82).
  8. In cases where the prosecution relies on an accident for evidentiary purposes:

a)the jury should be specifically directed that it is not necessary to show that the relevant measure would have prevented the accident. Further, that any exploration of the circumstances of the accident is only for the purpose of showing or rebutting its evidentiary significance (DPP v Vibro-Pile [2016] VSCA 55 at [89], [99]);

b)it is best to avoid the language of causation in directions to the jury. References to an act or omission causing or producing a risk is apt to mislead the jury to think that the prosecution must show that the act or omission caused an accident or injury (DPP v Vibro-Pile [2016] VSCA 55 at [83]);

c)an undue focus on the accident will also lead to an unnecessary narrowing of the relevant risk (DPP v Vibro-Pile [2016] VSCA 55 at [86]);

d)a judge must be careful to ensure that any directions on the permissible use of evidence of an accident does not mislead the jury into thinking that they need to determine whether the failure to take the prescribed steps caused the accident (DPP v Vibro-Pile [2016] VSCA 55 at [91]).