Occupational Safety, Rehabilitation and Compensation Committee: Referral of Work, Health and Safety (Industrial Manslaughter) Amendment Bill

November 2, 2016

 

The Hon. J.A. DARLEY ( 16:39 :52 ): I move:

That the 25th report of the committee on the Referral of the Work, Health and Safety (Industrial Manslaughter) Amendment Bill be noted.

 

The committee's 25th report is the result of an inquiry undertaken in response to the Work Health and Safety (Industrial Manslaughter) Amendment Bill, which was referred to the committee from this place. The purpose of the bill, which was introduced by the Hon. Tammy Franks MLC, was to provide for stronger penalties for employers and corporations whose negligent work practices result in work-related fatalities.

 

Work-related fatalities are unacceptable and not only end the life of an innocent worker, but also have far-reaching consequences for the families, friends and others close to the deceased. While one workplace fatality is one too many, the committee notes that there has been a continued downward trend in workplace incidents, injuries and fatalities, which are the responsibility of everyone to prevent. In the last 12 years there have been three previous attempts to introduce a similar bill to prosecute individual employers who recklessly disregard the health and safety of their workers, where that disregard has resulted in the death of a worker.

 

The Hon. Nick Xenophon introduced a private member's bill in 2004. The committee itself investigated the possibility of introducing such an amendment to the then Occupational Health, Safety and Welfare Act and, in 2010, the Hon. Tammy Franks again introduced a bill to amend the Occupational Health, Safety and Welfare Act. Since these attempts, the Work Health and Safety Act, which is based on the national model legislation, has been adopted. It places a duty of care on a person conducting a business or undertaking (a PCBU) rather than the employer.

This reflects the changed relationship between workers and businesses. Workers are now engaged in many different arrangements, such as on contract, through labour hire organisations and as subcontractors, and there has been an increasing casualisation of the workforce. A person conducting a business or undertaking has a duty of care and its officer has responsibilities to any worker on the worksite, regardless of the employment relationship. This change reflects the complex arrangements on large worksites such as construction sites.

 

On these sites, it is possible for an employer to take every reasonable measure to protect the health and safety of workers from a contractor or someone else who may enter the site and create an unsafe situation. Imagine a construction site like the new Royal Adelaide Hospital, which has many contractors, subcontractors and others working on site with different employment relationships. The example can easily be imagined where builder erects a barrier around a void on a construction site, only to have it removed by a contractor to gain access to the site for different reasons.

 

An inexperienced worker who falls through the void and is killed does not do so because the employer is negligent, but because of the actions of a third party. In this scenario, the Work Health and Safety Act places the obligation on the contractor, who has a duty of care to all those who are working on the site (the person conducting a business or undertaking). An investigation would reveal who had the duty and how the failure had occurred. However, under the Work Health and Safety (Industrial Manslaughter) Amendment Bill, it would be difficult to prosecute the guilty party if they were not the employer. It was also brought to the committee's attention that the bill may prevent the prosecution of any person who had aided and abetted a work-related death.

 

Submissions to the inquiry from legal and policy interest groups including the Law Society, the Director of Public Prosecutions and the Flinders University Centre for Crime, Policy and Research all raised concerns about conflicting language, definitions and other aspects of the proposed bill compared to the Criminal Law Consolidation Act and the Work Health and Safety Act. A major difficulty with the bill is that it focuses on the employer and employee relationship rather than the now more complex work and supervision arrangements that are in place. The bill also attempts to adopt some aspects of the Australian Capital Territory Criminal Code and Britain's Corporate Manslaughter and Corporate Homicide Act which do not align with the Work Health and Safety Act.

Employers voiced a common view that it is far better to prevent fatalities than to prosecute individuals after the death of a worker. There was also a common view that the increased penalties in the Work Health and Safety Act, particularly the category one offence which has a maximum penalty of $3 million for corporations and up to $600,000 and/or five years in prison for officers who expose a person to a risk of death or serious injury or illness is a significant penalty improvement on the former Occupational Health Safety and Welfare Act. The Work Health and Safety Act does not wait for a fatality to occur before a prosecution can be taken. It is the risk exposure which will be prosecuted which is aimed at prevention of work-related injury, illness and fatalities.

 

The committee heard from a number of sources that there are legal difficulties with holding employers in large complex organisations accountable for a workplace death. Many levels of management accountability often make it difficult to identify the directing mind of the corporation when decision-making is diffused through the organisation. However, the committee notes that it is currently possible to prosecute an employer or any other individual for manslaughter under the Criminal Law Consolidation Act as has occurred in the recent case of Colbert.

Colbert showed reckless disregard for his employees by not maintaining the brakes on a truck which ultimately resulted in the death of an innocent man leaving a distraught family without a husband and father. These prosecutions are made possible because of the closer relationship between the decision-maker and the work that is performed. The committee recommends that the Crown Solicitor and the Director of Public Prosecutions consider a protocol to ensure due consideration is given to prosecuting a manslaughter charge in the case of a work-related fatality where it is appropriate to do so. The committee also recommends that this should not prevent the Crown Solicitor from prosecuting a corporation under the Work Health and Safety Act.

 

Based on the evidence presented to the committee, members maintained that there are adequate legal systems in place to deal with industrial death arising from negligent disregard. On this basis, the committee does not support the proposed amendment to the Work Health and Safety Act. I would like to thank all those who made submissions and gave evidence to the committee. My thanks also go to the presiding member, the Hon. Steph Key, from the other place and hardworking committee members: the member for Fisher, the member for Schubert, the Hon. Gerry Kandelaars and me. My thanks also go to the committee's executive officer, Sue Sedivy.

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