On
In the Queen v
Recently
Ardent was prosecuted under Section 32 WHS Act (category 2) which provides for civil penalties only while
It is recorded that
The WHS Act exposes not only bodies corporate but their officers to prosecution for breaches of such Act.
The premise of this article is that the effects of the prosecutorial regime under the WHS Act are likely to become even harsher.
The SWA national review of the model
- enter into a contract of insurance or another arrangement under which the person or another person is covered for liability for a monetary penalty under the Model Act;
- provide insurance for a grant of indemnity for liability for a monetary penalty under the Model Act, and
- take the benefit of such insurance or such an indemnity.3
The author of the Report records an "overwhelming support for the option to specifically prohibit insurance arrangements within the model WHS laws4
The rationale to the recommendation lies in the belief that to ensure greater compliance with the model WHS laws monetary penalties imposed under WHS legislation should be "an effective deterrent and are not nullified by being paid through insurance coverage or an indemnity".5
It has long been a concern whether the insurance policies providing protection against monetary penalties are in fact lawful as being against public interest but while insurance companies have not sought to argue the point and while courts have been prepared to uphold such contracts of insurance except in instances of willful or dishonest conduct such policies have protected the insureds against the effects of substantial monetary penalties.
The recommendation seeks to remove that protection.
Recently,
If the premise of this article is correct, it is even more critical for employers and their officers to implement, review and maintain a risk management strategy.6
Footnotes
1 Safe Work Australia website - Law and regulation
2 Review of the model
3 Review Report - Recommendation 26: Prohibit insurance for WHS fines
4 Review Report page 137
5 Review Report pages 136 and 137
6 Article -
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.
Mr
Bennett & Philp Lawyers
Level 13,
Brisbane
4000
Tel: 73001 2999
Fax: 73001 2989
E-mail: MEvans@bennettphilp.com.au
URL: www.bennettphilp.com.au
© Mondaq Ltd, 2020 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source