Occupational violence in fast food restaurants and petrol stations 3

The Australian media has been abuzz over the last couple of days on several issues concerning violence.  Attention increases whenever there is video involved and the latest film of a bashing in Melbourne in a Hungry Jack’s store in the early hours of 13 July 2009 is getting a considerable run.

Most commentators are taking the bashing of 19-year-old Luke Adams as an example of “street violence”.  SafetyAtWorkBlog believes that the fact that this event occurred between customers in a workplace, raises questions about the obligations of retail store owners towards health and safety.

The case of Luke Adams again illustrates the reality that surveillance cameras can assist in the apprehension of criminals but does little to reduce the harm to employees and customers.  This seems to be contrary to the OHS principles in Australian OHS legislation.

SafetyAtWorkBlog would ask any retailers who choose to operate, particularly, during nighttime

  • Are the stores designed to reduce (hopefully eliminate) the risk of violent contact between customers and staff?
  • Are there restrictions on the age or gender of staff who work nightshift?
  • Is the first aid training provided to staff designed to accommodate the emergency treatment of severely injured customers?
  • Has the presence of a security guard been tried during nightshifts?
  • Would the company consider closing a store if the risks to staff and customers became unacceptable?

SafetyAtWorkBlog knows of at least one fast food restaurant in Melbourne that removed its public toilets because of the number of drug overdoses that occurred in the cubicles.  This store eventually closed its 24-hour store, partly, because of the unacceptable risk that developed.

The unfortunate linking of fast food restaurants with violent attacks is an issue of all-night trading as much as any other reason.  It was just over two weeks ago that a fight in the grounds of a Hungry Jacks restaurant in suburban Melbourne was reported and wrapped into the current topic of supposedly racist-based attacks against Indian students.

The attacks are not limited to Melbourne though.  A 19-year-old Korean student, Lee Joonyub, was killed in Sydney in 2008 after being stabbed at a fast-food restaurant

AIC Service Station Violence coverThe risk of occupational violence, as it is more traditionally understood, is increasing according to findings released on 16 July 2009 by the Australian Institute of Criminology.  Its report, which also received some media attention from radio, finds that

“The incidence of service station armed robbery has steadily increased over the past decade. ….. This opportunistic targeting of service stations has been attributed to their extended opening hours, their sale of cigarettes and other exchangeable goods, their high volume of cash transactions and their isolation from other businesses. Widespread adoption of crime prevention measures by service stations, such as transfer trays, could help reduce their risk of being robbed…..”

The full report is worth reading closely from an OHS perspective as it identifies the characteristics of services stations (and maybe other all-night retail outlets) that are attractive to the opportunistic robber.  We should not dismiss armed robberies as only involving monetary loss to retailers as the study showed that “one-third of armed robbery victims…were individual”.

The AIC report also states that

“…minimal staffing on night shift is seen to increase the risk of armed robbery victimization for service stations.”

This brings in all the OHS advice and research concerning working alone or in isolation.  However there must be some sympathy for employers trying to recruit night shift workers for industries where violence is an increasing risk.

The mention of the hazard control measure of transfer trays is gratifying as it fits with a higher order of control measure in OHS parlance by providing an engineering control.  However this needs to be backed up by specific training for employees on what to do when required to render assistance outside the enclosed booth.

The application of transfer trays may be valid for fast food stores at nighttime by only offering a drive-thru service and further reducing the risk of customer violence against employees.

Pages from VWAHotspots_retail_10_10Regardless of the physical harm from work tasks arising from working in retail, WorkSafe Victoria advises of four control measures for what it describes as the psychological system of stress, bullying and harassment:

  • Your workplace culture and management should encourage open and effective communication.
  • Develop, implement and enforce clear policies and procedures that address bullying, occupational violence, harassment and work pressure in consultation with workers (including young workers) and management.
  • Where money is handled, put in place security measures to reduce the risk of occupational violence.
  • Training and procedures should include all staff at risk, including any casual or on hire workers.

Kevin Jones

What the next generation of graduates wants 1

A survey of graduates by GradConnection released on 15 July 2009 has important information for Australian companies and provides some optimism for the OHS profession and regulators.

A dominant element of modern employment is work/life balance. In some disciplines this is taken as workplace flexibility. In terms of workplace safety, work/life balance is a euphemism for psychosocial hazards of stress, bullying, fatigue, and workload amongst others. From this position, the survey findings showed that, when asked “What are the most important extra benefits?”, work/life balance scored the most support at almost 39%.

Companies that want to recruit graduates, often those companies which are looking to refresh their staff and workplace culture but also need to build sustainability and longevity, need to review their existing working conditions to match the desires of job seekers. This could be an enormous task for corporations that will take years but smaller companies can afford to be more reactive and flexible and may get the edge on attracting graduates.

It must be acknowledged that over 60% identified high salaries as the most important element in their salary packages. But the work/life balance indicates a growing reality that graduates are less likely to trade off wellbeing for dollars.

This is supported in terms of extra benefits where flexitime and flexible working arrangements gained around 24% and 22% support, respectively. Companies must operate within the time constraints of their industry, suppliers and customers but they should also identify those work processes that allow for flexibility. It may be useful to formalize start and finish times so that there remains a core set of hours within the working day where interaction of staff and clients can be maximised. Some of the social structures are already pushing in this direction with issues of public transport, schooling and childcare already accommodating this flexibility.

David Jenkins, the director of GradConnection, told SafetyAtWorkBlog that

The data we have extracted is drawn from contributions by about 10,500 graduates currently looking at their career options. It gives employers clear indicators as to what grads are looking for in their careers and helps potential employers adjust or increase their messaging about careers on offer at their companies.

Hope for OHS professionals and regulators comes from the fact that of the values that graduates wanted an employer to embrace, health and safety ranked third, behind equal opportunities and environmental sustainability.

This survey is the first generated through the website of GradConnections so the next survey should be able to provide some trend data.

Kevin Jones

New Worker Memorial 3

On 13 July 2009, Tasmania’s Minister for Workplace Relation Lisa Singh braved

Lisa Singh MP, Minister for Workplace Relations

Lisa Singh MP, Minister for Workplace Relations

the elements to launch the Tasmanian Workers Commemorative Park in Launceston.  The park is a work in progress and the local council is looking for support in the memorial’s completion.

According to the Minister’s media release, the Park was created to honour those who have died in the workplace.

“A memorial dedicated to those who lost their lives at work is an important way of reminding the community that workplaces can be dangerous places,” Ms Singh said. “The cost to the community can be calculated in dollar terms, but it is the social cost that is incalculable.  How can anyone even imagine the grief felt by family and friends when a loved one is killed at work?”

It is not unreasonable to hope that every Workplace Relations Minister has talked with victims of workplace fatalities and illnesses and could “imagine the grief”.  The Tasmanian government has pledged $A5,000 to the project.

Simon Cocker, Secretary of Unions Tas, told SafetyAtWorkBlog that the Tasmanian union movement is supportive of all memorials to injured workers and hoes that this is the first of a series of memorials in each of the  major Tasmanian cities.  The union movement is discussing how much financial support they can provide the memorial.

A media release from the Launceston City Council says:

Elizabeth Gardens, on the corner of Invermay Road and Forster Street, was chosen as the most appropriate site as it provides a peaceful and uncluttered spot suitable for contemplation and it has strong connections with past work places of Invermay.  Its close proximity to the popular Aurora Stadium also gives the site state prominence.

The path through Elizabeth Gardens will be sealed and edged with bricks and an arbour will be constructed along the path, using materials selected for their relevance to a wide range of employment sectors.

The design includes a seating area that will be surrounded by ripples. The ripples will be made from clay bricks that represent the individuals who have died.

Cocker says that he hopes the memorial project (pictured below) can be completed in time for the International Workers Memorial Day on 28 April 2010.

Kevin Jones

Tas Workers Comemorative Park plan for broch nospon small

Latest Code of Practice on Scaffolding Reply

Australia has had some awful scaffolding collapses and swing-stage incidents over recent times.  (At least four articles on the issue can be found in SafetyAtWorkBlog by using the search function on the right).  Sometimes, some would say often, Australian OHS regulators can respond quickly to a workplace situation.

The Queensland Government commissioned a review of suspended, or swing stage, scaffolding  by Dr Andrew Baigent.  The report was finalised in August 2008.  A new scaffolding code of practice was released in early July 2009.
report-suspendedscaffolds coverscaffolding_code2009 cover

Research review of influenza and noise-induced hearing loss Reply

The Cochrane Library has long been a good source of research information.  Recently, the library undertook reviews of some of the seasonal influenza intervention and have produced a short podcast on the research.

Also, the Library looked at noise-induced hearing loss (NIHL).  The importance of this condition is high due to the damage being irreparable.  In some countries, regular occupational hearing tests are a regulatory requirement in some industries and the research review did find some low-level research that supported hazard control through legislation. The review says

“There is contradictory evidence on the effectiveness of hearing protection and hearing loss prevention programmes. Higher quality prevention programmes and better implementation of legislation are needed.”

There was some support for the efficacy of PPE but training in the proper use of earplugs increased the benefits considerably.  Those readers who are in the mining industry may find the NIHL podcast particularly useful.

These reviews are of  rsearch studies and are not research in themselves, but they are useful summaries of a current state of knowledge on particular matters.  Always look to the original data source if you wish to initiate prevention strategies or, better yet, contact you local OHS regulator and apply for a research grant so that you can generate research that meets the OHS needs of your industry.

Kevin Jones

OHS regulator resources in perspective Reply

It is essential for corporate OHS policy-makers to leave their high-rise offices to experience high-risk workplaces such as factories and small business.  This exposure to reality will add a practicality and ease of implementation to their OHS initiatives.

3i17 coverIn a similar way it is important that OHS professionals in industrialised nations with online references immediately to hand, and assistance at the end of a mobile phone call, realise that workplace safety can implemented, taught and regulated with a lot less.  Some countries have no option but to work with lean resources but good skills.

In 2002 I conducted an interview with Stanley D Pirione, the Deputy Commissioner of Labour for the Solomon Islands.  In 2008 Mr Pirione was the Under-Secretary – Strategic Policy and Reform of the Public Service.  Over the last seven years, the Solomon Islands has faced many political and economic crises.

The interview below is from 2002 but, I think, it is a useful reminder of how some our colleagues have to achieve similar performance targets with a lot less.

Kevin Jones

SAW: Could you provide us with an outline of your Department’s activity and structure?

SP: Eight workers usually staff the OHS Unit but at the moment, we have only 3 workers. We operate under the Labour Division of the Ministry of Commerce and Employment and Industries. The main objective is to provide protection for workers from work hazards, promote and control safety and health at the workplace and provide advice to employers and employees about their respective duties as stipulated in the various Acts and Laws. We also carry out inspections on work policies and practices within industries to ensure compliance with our standards.

We also have Labour Inspectors who conduct respect inspections and surprise inspections. We usually go on tours to the provinces. The geography of the islands means that the islands are very far from Honiara, the main place. We conduct no more than two or three visits a year.

We promote Labour laws through the local newspapers, brochures, even through the radio. We host workshops and seminars for the middle managers and health and safety officers.

SAW: Does the Department’s workforce include the Inspectors?

SP: We usually conduct inspections on Honiara because it is less costly and close to our offices. The islands are very scattered and it can take 10 to 15 hours to travel by boat to the other side. To go by plane is too costly.

We do have overseers in our sub-centres but due to the government problems, some of the workers have been called back to the main centre in Honiara. But what we are doing now is we are providing “extension services” where we appoint workers from the private sector to do labour inspections for the Government. We go through a number of procedures with them; the Government blesses them and gives them the mandate to inspect. These people then have the same powers as the Labour Officers. We are opening up for those in the private sector.

For the past 16 or 18 months, the rate of inspections has really declined because of our problems in the Solomons.

SAW: How is the integrity of the inspection by the “extension services” maintained?

SP: We appoint inspectors in their own respective fields, especially those in manufacturing, mining, fisheries and forestry. Each inspector inspects within his own area of work.

SAW: In a country of limited resources, what is the major source of information on new OHS hazards, or hazard controls?

SP: We always tip in on ILO Suva who give us much information. Last year, two of our officers attended regional workshops on health and safety in Nadi. We make use of this information and then disseminate it to the industries.

However, the standard of information to the public is very low. Most of the workers in the industries are not really aware of the safety standards. The Government itself has not really recognised the role of the OHS Unit. We work on every possible means of resources that we have in giving them out to these people.

SAW: How long has the Solomons had workplace safety legislation?

SP: Since Independence. We have only two Acts here – the Workers Compensation Act and the Safety At Work Act. They were enacted in Parliament in 1982 and the latest review was in 1996. We still need to update these Acts because there are a lot of things to be done.

The standard of safety practiced by foreign companies in the Solomons is very much higher compared to our safety legislation. The Safety At Work Act is too general. It does not cover specific industries like those in mining and fisheries

SAW: I suspect that overseas companies dominate mining.

SP: So far, we only have one mine and mining company, an Australian company. But it is the logging industry that has dominated the workforce here.

We have 15 to 18 logging operations in the Solomons, mostly from Malaysia. The problem is that this group do not enforce their labour standards here, compared to the New Zealand and Australian companies.

SAW: Do the Solomons pay close attention to voluntary standards imposed by overseas companies?

SP: The conditions we place on foreign companies when they move in are to make sure that their standards match ours. But there are too much politics involved and then they will just get through. We usually make use of the powers that we have available through our legislation. We give companies enough time to improve on their standards. Mostly when the investors come in we say this is what we expect from you.

SAW: Many countries have to balance the enforcement of safety standards so as not to deter investment. Is that the case in the Solomons?

SP: The Government has appealed to all the Departments to facilitate as much as possible to let these people in. There should not be any hindrance, there should not be any delay in processing whatever they intend to do. In fact health and safety is also treated as a hindrance to their intended activities but we always state that they should not operate below our standards.

SAW: Do the Australian companies have difficulty in that arrangement?

SP: The Australian companies in mining and manufacturing have higher standards than their Asian counterparts. We always use their standards to inspect, particularly in the Asian logging companies. We are using Codes o Practices as guidelines, from New Zealand, even from Australia. We use them as a standard, we know that that is higher than the one we have here but we know that that is internationally recognised.

SAW: Is logging the dominant industry in the Solomons?

SP: For the post 10 years or so, logging has been the dominant industry. The logging companies employ 20-30% of the private sector. This is the industry that we have a lot of injuries from. Mostly, minor injuries like cuts and lacerations. Over the last 5 years we have received many accidents from the manufacturing and forestry sectors. We have an average of 2-3 fatal cases each year.

SAW: Principally in the logging industry?

SP: Yes

SAW: Are injured logging workers rehabilitated through the companies’ processes or is the compensation and rehabilitation mainly through the Government’s workers compensation legislation and processes?

SP: For fatal accidents, the company pays out for the funeral expenses. They meet all the payments and sometimes pay some compensation to the worker’s relatives and dependents. That is treated differently from what is required under the Workers Compensation Act.

We follow our own formula and procedures. The companies have nothing to say about that. Once we give a claim, we charge them for negligence, for not abiding by the provisions. There should be no questions about that.

For small incidents like abrasions, contusions or small simple fractures or sprains and strains, we follow the Workers Compensation Act.

But there are particular arrangements that occur between the employee and the employer, outside of the Act. We always welcome those.

SAW: Are the mines in the Solomons open-cut or underground?

SP: Open cut. The mining industry is very new and started about 6 years ago. We haven’t yet tried to make provisions for Codes of Practice with regards to mining. We are confident because of the standard of health and safety within this mining company. We are not concentrating on mining because we know too well that the standards are much higher than in logging.

SAW: What industry do most people want to be employed in? Is it logging because of high pay? Alternatively, is it mining because it is a safe industry with an Australian company? Do the citizens of the Solomons consider safety when they go for jobs?

SP: These industries have generated a great deal of money in a very short time. These have attracted workers because of the high pay and all sorts of allowances. Before that most of the workers were focussing in the manufacturing sector or the fishing sector. Just because the work is lighter particularly in the manufacturing sector, there’s not as much exposure to hazards. There is a lot less risk than in the logging.

The logging companies do pay bonuses for those who are exposed to very dangerous situations.

The fishing is quite similar. Due to the problems in the fishing sector, many workers have left and moved to the logging sector. Most of the workers go to the industries based on higher wages.

SAW: Some countries separate the OHS enforcement of fishing from land-based industries. Does this happen in the Solomons?

SP: The Safety at Work Act is too general. It only mentions responsibilities of employers and workers. It does not say anything about fishing although it gives more time for the Minister responsible to put out rules or regulations. Mostly, the Safety at Work Act covers only the manufacturing sector, not specifically fishing or even logging and mining. We have a bit of difficulty so can only place their obligation under the Safety at Work Act. Regardless of what industry you are involved in, regardless of what activity you are doing, as long as you are the employer, defined by the Law, and then this is your responsibility.

SAW: If you were able to have anything to improve OHS in the Solomons, what would you choose?

SP: We have a range of programs here to give out enforcement standards to workers. We have a lot of workshops and programs targeting certain industries. We also have radio programs, we have field and enterprise inspections. We usually go out on courtesy visits and then we talk with the employer and the employee. It is not like a policing attitude. We suggest, in a friendly manner, what they should do.

We also issue pamphlets and brochures but the problem with all this is that we do not have enough money to carry out all our programs. That’s why we are now establishing “extension services”. The Government then does not have to go and spend money for inspections. We appoint inspectors in their own respective industries.

We also need training programs. We did have a project sponsored by the UNDP, where some of our officers used to go out to New Zealand. Last week, Papua New Guinea’s OHS Division sends us information but now the UNDP has withdrawn its sponsor….

SAW: Many countries have support on workplace safety from the trade union movement. Is that so in the Solomons?

SP: The union movement in the Solomon Islands deals with wage increases and other conditions of services but not necessarily on occupational health and safety. It is quite weak. Many workers have been frustrated by the weaknesses of the union. The union movement has been talking too much about politics and not concentrating on their members or increasing the membership.

The safety standards have not really been discussed in negotiations. They are more concerned with better wages and better housing.

SAW: The political problems have resulted in some areas that you cannot go to. How much did the instability hamper you Department’s operations?

SP: During the 1997 Government there was a lot of consultation with overseas groups from Australia and New Zealand providing seminars. There was a lot of motivation. We have tried very hard to improve on labour law reviews. We also tried to work out Codes of Practices in new areas, put up new Regulations. The activity of the OHS Unit have been gradually increased since 1997. The Government has been very supportive of our work plans. The Government gave us a vehicle to use to carry out inspections.

Due to the ethnic problems of the Solomons, nearly 50% of our operations have been affected. There are no finances. Some of our workers have been left out. A former OHS Officer is now a Minister of the Government. He resigned, went home and then ran for election. Some of our workers now work in the private sector. This is because the Government has not been very supportive in addressing the problems we have encountered.

We are optimistic as things gradually improve. It is only law and order that is the problem we have right now. But we are optimistic, we are now establishing the “extension services”.

Recently I conducted two inspections. One was a logging company in one of the provinces and I will be going out inspecting in July, August, and September. By the end of this year, I should have covered at least six or seven logging companies.

We have just finished one workshop and we are trying to have another in June.

SAW: Thank you very much for your time.

It’s not what you do, it’s the way that you do it Reply

One of my colleagues has described her role in a corporation as an “irritant”.  She is responsible for quality, environment, risk and OHS – all of those required business elements that companies will avoid or ignore if they could.   Her company acknowledges that these elements are necessary and values her role and efforts.

OHS professionals could benefit from realising that in most circumstances, they are not welcome, or rather, their advice is not welcome.  OHS is a bitter pill for many companies.  But handled well, explained and discussed, OHS can be a substantial agent for positive change.

Sadly, one construction industry unionist in Australia is doing more harm than good.  Joe McDonlad is an experienced unionist who is undoubtedly committed to the safety of his members in Western Australia’s construction industry.  However, he does not respect the law or due process.

This week, Joe McDonald was fined $10,000 by a Perth Magistrate, Jeremy Packington, for unlawfully entering three building sites in 2007.  McDonald’s actions generated considerable political discussion at the time, mainly because his actions occurred during an election campaign.

Safety improvements can be achieved without confrontation and insults.  A major OHS principle is consultation.  McDonald is a safety-focused trade unionist who may succeed in his aims to improve safety for his members.  But the manner in which he conducts his services is causing widespread damage to the cause of OHS in the general community, employers’ perceptions of OHS and the trade union movement in general.

Sometimes the bigger picture is important.

An audio report and a video report of Joe’s action on the construction site and his thoughts on safety are available online.

Kevin Jones

What do Gardeners do? Reply

In my opinion they plant seeds, water, nurture and care for plants and flowers.  Are Safety Professionals akin to a gardener?  Someone whose sole purpose is to the plant the seeds of safety and cares for the overall well being of a of those members of the company that produce?

Many small businesses may have a gardener part time or not even at all.  Instead they elect to play the role of someone who goes out and just purchases a plant, flower or tree from the local flower shop or garden centre.  However, you still need to have gardening skills in order to make the plant grow, the flower to bloom or the tree to offer shade.

Thus, a gardener mindset is much better than the traditional hunter, gatherer or farmer.  You see, a gardener is someone who plants, cares for and cultivates.  A hunter is someone who kills or hunts for sport, is that the right mindset to have in business?  Correct me if I am wrong, once you kill something it is dead?  How can you establish a relationship with something that is dead?

Therefore the gardener mindset is a much better one in my opinion.  Try for a day, a week and then a month.  I think you will enjoy the fruits of your hard work to build, establish, care for and harvest the greatest relationships and a better overall perception of the “Safety Person’

Cultivation of soft skills are hard to train people to have, they can however be gained by the involvement of a keen mentor. The ability to communicate, motivate and lead others are all soft skills. People are not widgets and, as such, each is unique and motivated by a different set of things. Good judgment and character play a huge role if you want to flourish enduring trust.

Pamela Cowan

Fair Work Act and OHS 1

On 1 July 2009, the Australian industrial relations (IR) climate changed with the introduction of the Fair Work Act. Regardless of the politics of the new Act’s origin, this legislation changes the way that working conditions for Australians are negotiated and set.

The  Fair Work Act has no relevance to occupational health and safety, so why mention this on SafetyAtWorkBlog?

The new IR legislation should reduce the conflict that has been existent in workplace negotiations.  The new industrial climate is consultative and  forward-looking.  In fact, the government is hoping that, to some extent, this legislation reboots industrial relations (to borrow a phrase from current international diplomacy).

Fair Work Australia Commissioner Lewin

Fair Work Australia Commissioner Lewin

It is in this IR climate, and consultative structure, that OHS issues will need to be discussed and negotiated in the future.

In a webinar conducted by SmartCompany and Gadens Lawyers on 9 July 2009, the openness of the information/consultative processes was stressed by panellist, Kathryn Dent.

This positive management climate reflected that presented in an earlier seminar conducted by Douglas Workplace Lawyers.  Fair Work Australia Commissioner Lewin  and lawyer, Andrew Douglas, spoke about how the new IR system is more inclusive than the previous WorkChoices systems.  However, they also admitted that the Fair Work Act has nebulous support documentation and information.

Andrew Douglas

Andrew Douglas

The level of prescription is much less than previous.  This allows for less restrictive negotiation but it also means that clarity may rely on determinations made by the tribunal.  Commissioner Lewin concurred with Andrew Douglas’ point that the operations of the Fair Work system will require several years of “settling in” and some adjustments depending on determinations.

When raising OHS issues for the next year or so in Australia, employees and professionals need to be reminded that many of the managers and employers with whom they are dealing may well be feeling swamped by new industrial relations processes.  This distraction may be understandable but OHS obligations remain the same regardless of other management issues.

OHS may seem to be more messy during this period as the IR overlaps with the “safe systems of work”.  Unless IR is already part of the responsibilities of an OHS professional, the advice is to keep away from the details of the Fair Work Act.  However it is recommended that at least one seminar on the Fair Work Act be attended so that the “tone” of the new legislation is understood.  More important is how the Act is to be applied within the workplaces of one’s clients or employer.

Safety management systems will need to be tweaked to fit with the new consultative aims and processes.  Of course, they will need to be tweaked again once the harmonised national OHS legislation comes begins in 2010.  Don’t expect stability in Australian workplaces for the next couple of years.

Kevin Jones

Corporate manslaughter and accountability Reply

Corporate manslaughter, or industrial manslaughter as it is referred to in Australia, was not allowed to gain traction in Australia, except for in the Australian Capital Territory.

3i14 coverThe policy has been allowed to fade from the books of most of the Australian left-wing parties but for a while, corporate manslaughter was THE issue.  In fact over the last 10 years, it has been the only time that directors and CEOs from thousands of companies have paid serious attention to safety management.

The offence of corporate manslaughter seems to have lost little of its momentum in England.  Recently England instigated its first prosecution for corporate manslaughter.

It reminded SafetyAtWorkBlog of an interview we conducted with David Bergman on the issue in April 2002.  David Bergman has been the Executive Director of the Centre for Corporate Accountability for ten years and, only last week, was part of a conference in London on “Directors’ Duties, Corporate Manslaughter and Safety Enforcement“.

Below is the text of that 2002 interview

Manslaughter Lobbying – 2002 Interview with David Bergman

David Bergman is the CEO of the Centre for Corporate Accountability (CCA) located in London, England.  He spoke exclusively to [Safety At Work magazine] about the issue of “corporate killing” legislation and the activities of his organisation.

SAW: Can you provide an outline of what the CCA does?

DB: The organisation is a not-for-profit organisation. Its core purpose is to promote worker and public safety and it does this by focussing on two ideas – improved law enforcement and greater corporate accountability. We have three main activities, we run a work-related death advice service which is a core of our work whereby we provide free, independent and confidential advice to families bereaved from work-related death on how to ensure that an adequate criminal investigation is undertaken into the death and that the evidence is subjected to proper scrutiny by prosecuting bodies who have the duty to determine whether criminal offences have been committed.

We give that advice because, traditionally in Britain, lawyers whom families may go to are often only concerned with issues of compensation. We are concerned with issues of corporate criminal accountability.

We also undertake research into the role of the criminal justice system in the investigation, prosecuting and sentencing of companies and those who control them.

Finally we undertake some lobbying work. We try to lobby for appropriate changes to Law and practice in this area.

SWA: Is you lobbying receiving a sympathetic ear?

DB: There are two focuses of our lobbying. There’s the central Government and there is an organisation that is at arm’s length of the central Government, the Health and Safety Commission and Executive. Different departments of the central Government are responsible or different activities.

In Britain we lobby two Government departments. The Home Office is responsible for traditional criminal law and therefore the whole issue of the offence of manslaughter and how it applies to companies. The other department is Transport, Local Government and Regions which is responsible for general safety issues and has an oversight role of the Health and Safety Executive and Commission.

The Government has promised reform on the law of corporate manslaughter and on the sentencing of companies. In relationship to that we lobby the Home Office. It is difficult to say whether we are effective or not as the Government has committed themselves to making this change but it has been a long time coming and there is no Bill before Parliament and it clearly is not a priority of the Government which is why, of course, we need to lobby.

SAW: Sometimes there are activities in the justice system which can work counter to your lobbying or the will of the people. Have you seen evidence of that?

DB: The Courts can only apply the current Law as it stands. If you want change, this will come through changing the Law or changing the policy of the investigation and prosecution bodies to ensure that more cases come to the Courts. It is true to say that in terms of levels of fines there has been the traditional problem in ensuring that the Courts impose sufficiently appropriate fines commensurate to the offences committed when that offence has been committed by the company or individuals who control them. That would be the main criticism of the Courts, but beyond that the Courts can only apply the Common Law and also can only deal with cases that come before it.

So if there are deficiencies in the Law, that’s not the fault of the Courts, that’s the responsibility of the Government to change. And if there is a failure on the investigation or prosecution bodies to investigate appropriately or fail to prosecute particular companies or individuals; that is a failure on their part and that is where we need to change practice.

I wouldn’t saw that the Courts are a core part of the problem.

SAW: What has been the response to your lobbying from some of the employer and business representative organisations?

DB: We have been involved in establishing coalition campaigns on safety law and corporate accountability that bring together safety organisations, trade unions and families bereaved from work-related deaths. There are two core issues – the reform of the law of manslaughter and the enactment of this new offence of “corporate killing” as it is referred to in Britain, which the Government is committed to but to which no priority is being given.

Secondly there is the imposition of safety duties on company directors. At the moment under British Law, there are no clear safety duties imposed on company directors, safety obligations are placed on employers or manufacturers. Directors, as separate legal entities from the companies, have no clear legal obligation to ensure that the company complies with safety law.

The two groups mainly in opposition are the Confederation of British Industry (CBI) and the Institute of Directors. There is recognition by industry that a new offence of corporate killing will be enacted and there is a sort-of acceptance. What they’re doing is lobbying to make it more difficult for companies to be convicted of the offence.

The Institute of Directors is lobbying against legal obligations on company directors. Although the Labour Government can well be said to be more interested in safety than a Conservative Government they do listen carefully to what industry says.

SAW: Recently the Australian Industry Group had some concerns with the Industrial Manslaughter Bill that is currently in the Victorian Parliament in Australia. One of their concerns is there needs to be an emphasis on education and not retribution. They don’t believe that such an Act will promote safety, it will only penalise

DB: Our response to that sort of argument is that, first of all, under current law companies escape any form of accountability, even for very serious failures on the company management’s part. Normally there is a situation of immunity and companies don’t get prosecuted for serious offences. That has two effects – a lack of moral justice and a sense from bereaved families and the community that there are some legal entities that are not accountable. There is a problem in the social fabric.

Secondly, if there is immunity under Common Law, and companies know that they can escape accountability, there is inevitably going to be a lack of deterrence in the system so that some companies will feel that we don’t need to change our safety management systems because it is unlikely that there is any serious impact if something goes wrong.

Companies, of all legal entities who get caught up in the criminal justice system, are rational beings. If there is a sense that there will be more cost for them by taking a particular action than if they don’t take a particular action, they won’t take that action. Individuals commit offences for all sorts of reasons which are irrational while corporations operate from a much more rational base. So they are much more likely to be deterred.

In our view, these changes are important for accountability issues which the argument that you mention does not deal with. They are also important for deterrence which links directly back to safety. That is not to say that, hand-in-hand with other approaches for change in criminal law, there ought not to be attempts to ensure that companies are able to comply with safety law so that offences aren’t committed.

SAW: The AI Group says that Government has failed to provide any evidence that such a law will reduce the level of workplace death and injury.

DB: If you look at any reform in Criminal Law, there is never any evidence to say that if we change the law in this particular way there will definitely be a reduction in the number of deaths, or whatever. The fact that you may reform the law of murder in one particular way doesn’t necessarily mean that there is a reduction in murders.

You ask industry to show in any research in relation to any other Criminal Law reform that says “we’re going to change the law because if the law is changed there is evidence to suggest that fewer offences will be committed or fewer deaths will take place.” It just doesn’t happen. That’s not the way that Criminal Law reform happens.

Criminal Law reform takes place because there is a perception of a lack of justice.

This argument doesn’t carry any weight because there is never any evidence that a particular legal reform is going to cause a particular change but what you can be sure of is that there will be greater accountability and you can speculate that there will be greater deterrence.

SAW: Some people assert that an Industrial Manslaughter offence will encourage a change in workplace culture.

DB: The thing about changing corporate culture is that you are more likely to change it when you change the Law. That’s the important effect that law reform has, it changes the perception about a particular conduct. I would argue that changing law would have an important effect upon the corporate culture. There is no question about that.

The problem with a lot of the corporate social responsibility arguments is that they are all about voluntary codes and about trying to get companies to do particular things. There will always be some good companies that will comply with them. Compliance with those codes doesn’t get to the companies who will commit offences anyway.

SAW: The UK has had some high profile cases that generate discussion on corporate manslaughter. We have covered some of those in the last few years. But one that seems not to be going away is some of the issues associated with Railtrack, the privatised rail transport company, after some very public fatalities and incidents. Are they incorporating accountability into their new organisational structures?

DB: Clearly, after the Paddington disaster and others, rail safety became a priority in this country. I would say that this was a very good thing but it also subsumed attention to other industries where there is a far higher level of death and injury, like the construction and manufacturing industries.

Those disasters were partly responsible for increasing the debate on the need for a new offence on corporate killing, for Directors’ safety duties and also, the reason why the Government decided to take Railtrack out of private ownership.

Families of victims from the Paddington disaster are still pushing for the application of corporate manslaughter against Railtrack. The Crown Prosecutor initially refused to prosecute for manslaughter however the families have got the Crown Prosecutor to reconsider that decision.

SAW: Have you had any interest in the moves on corporate killing from outside Britain?

DB: Australia is the one country where it has been addressed. Canada has put in some important reforms in this area recently.

If there is reform in the area of corporate killing in the next few years, there might be an impact on other jurisdictions.

Kevin Jones

This interview appeared originally in Safety At Work magazine Vol. 3 Issue 14 on 30 April 2002.  It remains Copyright – Workplace Safety Services P/L