In an absolute first, and setting an interesting precedent, the
South Australian Parliament has passed legislation to amend the
Work Health and Safety Act 2012 (SA) (WHS Act). The
changes widen the scope for employers to be prosecuted under the
old Occupational Health Safety and Welfare Act 1986 (SA)
(OHSW Act), even where the prosecution would have been out of time
to begin legal proceedings.
The Minister now has the right to extend the two-year time limit
on starting proceedings for a breach of the OHSW Act where earlier
proceedings failed because of technical errors. This is the first
time legislation has been passed to retrospectively overcome failed
prosecutions. As a result, it is not surprising the amendment has
generated significant debate in the community and was opposed by
the Law Society of SA, Business SA and other key groups.
The legislation was introduced following an error made by
SafeWork SA, when in late 2014 they issued legal proceedings that
were signed by a person who didn't have authority to do so
under the OHSW Act. The proceedings were therefore invalid. By the
time SafeWork SA became aware of the issue, the time limit for
filing the proceedings had expired, which meant SafeWork SA was
unable to prosecute.
In order to address this issue, the retrospective legislation
was passed. Sch 6 of the WHS Act now contains a new section (s
25A), which states that, in effect, the Minister may:
extend the time limit for filing proceedings under the OHSW
commence proceedings against a person even though they have
previously been the subject of proceedings under the OHSW Act for
the same matter but where such proceedings were withdrawn,
discharged, dismissed or otherwise brought to an end.
The purpose of s 25A is to enable SafeWork SA to relaunch
proceedings against employers who were the subject of earlier
proceedings that had to be withdrawn due to technical errors.
Section 25A does require the Minister to take into account the
"interests of justice" when assessing whether to
prosecute. However, it is likely that employers who were the
subject of earlier prosecutions will be back before the Court in
the near future.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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