Bad law is turning ordinary NSW businesspeople into criminals, TOM SMITH * reports on his disturbing experience
I’VE always considered myself an honest man but, at the age of 62 and after 40 years in business, I’m shocked and traumatised to find myself with a criminal conviction.
What’s more painful is I had no control over the events for which I have been deemed guilty.
What happened to me can happen to any person involved in any business in NSW – but if you work in another state it would not happen.
Whether you run a one-person business or are involved in any level of management of larger businesses in NSW, you need to be afraid of the NSW occupational health and safety laws.
I’ve run small and medium businesses in NSW all my life. I was once proud to live in this state. I operate a labour hire business and we take work safety very seriously. We have a strong safety record in difficult industries.
In 2000 we had an employee working at a company on a machine that pressed out metal caps for power poles. The machine malfunctioned, crushing four of our employee’s fingers. We were shocked by the incident and co-operated fully in the investigation. We supported our employee.
In the court case against me, the judge found the machine failure was totally beyond my control and impractical for me to prevent. However, I’m still criminally guilty and I fail to understand why.
I’ve some questions for the Premier. If I don’t own a machine or the property on which it sits, didn’t make or design the machine nor have the capacity to direct its use or maintenance, how can I be held responsible when it fails? What sort of strange law holds me guilty for something I can’t control?
Mr Iemma, if I drove a car and the wheel fell off, causing an accident, would you convict me over something I could not control?
If you did it would mean everyone who had a car accident would face automatic criminal prosecution. It’s nonsense and illogical.
I was convicted because Mr Iemma’s OHS laws declare that, as soon as a work accident happens, the employer is automatically guilty whether there’s fault or not. I was the labour hire employer of my injured worker. The technical wording of the NSW OHS Act says I’m guilty because I’m the employer.
I did nothing wrong – I’d done everything a good employer must do in following safety procedures.
In NSW under these OHS laws, you are denied a trial before jury and normal rights to appeal.
No other state has these laws. Other states have sensible OHS laws that hold everyone responsible for what they reasonably and practically control.
I’m happy to be held responsible under those circumstances and that’s why I’m looking for business opportunities outside NSW.
I’m angry. I’ve discovered that a labour hire company that had three of its employees killed in the Gretley mining tragedy in the Hunter Valley has not been prosecuted.
The Government refuses to reveal why the directors of the labour hire company haven’t been prosecuted. According to a recent report, the labour hire company, United Mining Support Services, was owned by an ALP-affiliated union. Are unions exempt from prosecution? What’s happened to justice in this state?
Mr Iemma undertook last year to change these laws but backed down at the last minute because NSW unions would not agree. Instead he pushed the issue off to another inquiry which will report after the March state election.
I feel betrayed. There are plenty of other people in the same situation. We are honest but are technically criminals over occurrences we could not control.
ALP politics created this.
Will they fix it? I don’t think so!
* Tom Smith is managing director, DSC Managememt
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