It’s worth taking a look back at what the O’Farrell Government did back in February leading up to attacking injured worker entitlements. Yes, they claimed to have halted prosecutions in order to allegedly clarify new laws – however, evidence at the Workers Compensation Inquiry, from a Principal WorkCover Inspector , exposed the sham by claiming WorkCover Inspectors had long been discouraged from investigating and prosecuting WHS breaches – well before the alleged halting of prosecutions in February.
What does all of this suggest? The O’Farrell government intention has always been to undermine workplace safety and tip the balance in favour of employers. As we now know, it has been injured workers who have taken the full impact of changes to a system that has been grossly mismanaged. We can now expect that employers will continue to get a free ride whilst injured workers are left to languish.
WorkCover halts prosecutions to clarify new law
WorkCover prosecutors are adjourning all occupational health and safety cases listed for hearing while it reviews whether they fall under a law introduced last month.
The Work Health and Safety Act 2011 replaced the Occupational Health and Safety Act 2000.
The NSW opposition and Greens say the review breaches the intent of the new law because it is not retrospective and should not apply to cases that began before last month.
The new law makes it harder for the prosecution to prove its case. The government has described the change as a reversal of the onus of proof.
The former chairman of WorkCover NSW, Greg McCarthy, has warned the government scheme could be in deficit by as much as $5 billion when the annual accounts are produced in June.
The shadow treasurer, Michael Daley, said WorkCover was the regulator of workplace safety and its job was to protect workers and prosecute bosses responsible for workplace injuries and deaths.
‘”One of the first acts of the O’Farrell government was to undermine workplace safety and tip the balance in favour of big businesses,” he said.
“All WorkCover prosecutions are in limbo.”
Mr Daley accused the Finance and Services Minister, Greg Pearce, of political interference.
But Mr Pearce denied he gave a ministerial directive to WorkCover to adjourn any particular cases before the Industrial Court of NSW.
Greens MP David Shoebridge said the government was defying the Parliament by making the new safety laws retrospective in practice. He said WorkCover prosecutors should be free to do their job without any political interference.
He said there would be far fewer successful prosecutions than there were under the previous law, which would impact on work safety.
“Tougher occupational health and safety standards were set in law until the end of 2011,” he said. “WorkCover is ignoring this and delivering for the Coalition’s friends in industry.
“If an employer breached a safety standard they should face the full consequences, not be given a get-out-of-jail-free card by the O’Farrell government.
“The minister must immediately rescind this directive from WorkCover and allow prosecutors to do their job free from political interference.”
One Sydney barrister, who did not wish to be named, said he was involved in three sentencing matters on Monday and all of them were adjourned because WorkCover was conducting an internal review of cases brought under the Occupational Work and Safety Act 2000.
“Nobody seems to know exactly what is going on,” he said.
“It has a bit of a smell about it, suggesting they are having a secretive review with the idea of withdrawing all the prosecutions under the 2000 act.
“If they go down that path, then they are going to usurp the intent of the legislation. We are hearing they are reviewing the cases and testing them against what the current act requires.”
Mr Pearce yesterday said the Crown Solicitor had been asked to seek the advice of senior counsel on current prosecutions before the courts.
WorkCover had sought adjournments in a number of cases, pending advice from the Crown Solicitor.
“This situation is not without precedent,” Mr Pearce said, referring to a High Court case.
In 2009, the Kirk Group challenged the way the Industrial Court of New South Wales interpreted the Occupational Health and Safety Act.
Mr Pearce said that, in 2010, a judgment upheld the appeal in damning terms.
The High Court was particularly critical of the legislation and its application at that point in time especially the reverse onus of proof and the deemed directors’ liabilities provisions.
“Importantly, back in 2010, WorkCover, as a result of the Kirk decision and on the advice of senior counsel and with the knowledge of the then minister Daley reviewed all prosecutions before the courts to determine whether any amendments to the charges were required.
“At the time, amendment applications were made in a significant proportion of cases which were the subject of that review,” he said.