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

Alternative therapies Reply

Many alternative therapies have proved to have a positive therapeutic or medical benefit and there is no reason why these should not be applied to work-related conditions.

In 2001, Jill Kaufman was interviewed for Safety At Work magazine.  The interview is now available at SafetyAtWorkblog.

In 2001, the wellness industry in Australia was just starting and corporate health programs were searching for validity and credibility.  Rehabilitation, just like health insurers, was beginning to allow for a broader range of medical treatments.  It seemed useful to educate the OHS readers of the magazine with this developing approach to worker care.

Jill’s comments should be seen in their historical context but this does not make them any less interesting , or relevant.  Below are a couple of excerpts:

“Placing a long term RTW employee through the Western medical process could, in fact, be continuing to injure them in terms of their self-esteem. A different approach on a holistic basis allows for an understanding of the injury through an understanding of the person.”

“SAW: Many rehabilitation programs measure success by the rapid return of a worker to work duties but also by the financial expenditure on that person’s rehabilitation. Can the value of the approach you advocate be similarly measured?

JK: There can be surprisingly simple solutions to what can appear to be very complicated issues. I think one of the surprising things that companies learn is that it is often not a big financial expenditure or a large amount of time that can provide positive results. If you tackle the problem with the wrong instruments and the wrong tools, it can seem a very long haul to turn around and use a non-Western approach. But in fact shifts in thinking can bring about quick results.”

“SAW: Many call centres are providing yoga, physiotherapy and massages to workers on the premises and often without the workers leaving their workstations. What are your thoughts on this practice?

JK: Often this is doing the absolute minimum that is required. To have people doing yoga at their desk, when a core element of yoga is centring your self, breathing exercises, the call centre is as different to the practices of yoga as you can get.”

The need for a safety philosopher Reply

It is very hard to be an OHS professional and not feel like one is part of the “nanny state” approach personal choice.  There is a fundamental disconnection between the responsibilities on business for a safe workplace and the responsibilities on an individual to make themselves safe at work.

When the work processes are seen as mechanistic, where workers are part of that process, safety management is easier.  Hazards are known because the work process and environment are fixed and have no variation.  The employer’s area of responsibility is clear and can be said to be from the engineering/production perspective.

But at different points in history, the spotlight of humanism becomes bright enough that the workers get attention.  Safety management becomes complex because humanity is acknowledged in the work processes, one must consult, talk, listen and engage with the worker who was, previously, an element of the production process.

This is the manicheism of safety management – the machine or the human.

This rumination occurred in response to an article reported by the Australian Broadcasting Corporation on the union representing Sydney bus drivers “asking the New South Wales Government to pay for personal trainers and Weight Watchers programs.”

The union’s bus secretary, Raul Boanza, says, according to the ABC report,

“the union wants the Government to formalise an existing 50 per cent Weight Watchers subsidy by including the provision in enterprise agreements” and

“it will also seek gym memberships or personal trainers on a case-by-case basis on the advice of a medical specialist.”

Apparently “the Rail, Tram and Bus Union says drivers must pass strict medical standards every two years to keep their licences”.

SafetyAtWorkBlog contacted the union this afternoon and were advised that the person who raised the issue initially “is making no further comment on the matter.”

This is a shame as one of the first questions would have been, “should an employee be held responsible for making sure they are fit for work?”

Let’s indulge in some late-Friday afternoon silliness.  If a widget in a mechanical process is faulty it is fixed or replaced.  In a mechanistic perspective, if a worker is too fat to undertake the tasks they have performed previously they should be fixed or replaced.  This seems to match the position of Raul Boanza.

But if the widget had a consciousness and the means and responsibility to maintain their own suitability for work, should that widget be fixed or replaced?  This seems to be what each worker in any workplace needs to regularly ask themselves.

As mentioned above these two differing perspectives reflect our society’s (internal) debate on personal responsibility to one’s self and one’s society.

The leading safety academic in Australia is a sociologist.  Perhaps we are in need of a safety philosopher or at least a safety profession that considers safety in its social and personal contexts, that discusses, debates and progresses, rather than worrying about the latest corporate logo.  Perhaps we just need people to take responsibility for their own actions and be accountable for their own errors.

Kevin Jones

The economic costs of a heart attack 1

A new Australian report estimates the total costs of heart attack and chest pain (Acute Coronary Syndrome or ACS) to the Australian economy – “total economic cost of $17.9 billion.”  This Access Economics report, released in June 2009, has broad application for public policy but has some relevant information for safety and health management in the workplace.

Costofheartattackandchestpain coverIf we take “productivity” as applying to work, as is reasonable, the report states that for 2009

“Indirect [health care system] costs [from ACS] are expected to account for $A3.8 billion, primarily due to lost productivity.”

This is a useful statistic for those workplace health advocates.  In fact, the report specifically identified the workplace as

“…an excellent environment to facilitate the ongoing rehabilitation and lifestyle changes to prevent the re-occurrence of ACS event”.

One gap it identified in the treatment and monitoring of ACS was  something that many have been advocating for some years, particularly with the aging population and increasing obesity rates:

“a standardised national program to support employees and employers and the extension of rehabilitation practices.”

Much of the report advocates important rehabilitation resources and services for when the patient is discharged from hospital.  The report includes the following graphic but also recommends the basic elements of post-hospital care after an ACS event.

Costofheartattackandchestpain-261-2 rehab table

“For rehabilitation to be effective, comprehensive patient follow-up interviews after discharge are essential.  At these follow-up interviews, the patient should undergo both physical assessments (e.g. blood pressure, cholesterol tests, ECGs) and emotional and psychological assessments (e.g. signs of depression, anxiety, stress, financial hardships).  The psychological impact following an ACS event is an important, but often neglected, area in the management of ACS.  Thus, if patients can better understand their conditions, it can empower them to cope with their anxieties caused by ACS.”

In specific reference to workplaces, the report says:

“Returning to work can require an adjustment in duties and the conditions under which the employee works.”

It is up to OHS and return-to-work professionals to determine exactly what strategies should be applied in these circumstances.

There were a couple of references in the report that may be worth following up:

Bhattacharyya MR, Perkins-Porras L, Whitehead DL, and A Steptoe (2007), Psychological and clinical predictors of return to work after acute coronary syndrome, European Heart Journal, Vol 28, Iss. 2, pp. 160-165.

Kovoor P, Lee AKY, Carrozzi F, Wiseman V, Byth K, Zecchin R, Dickson C, King M, Hall J, Ross DL, Uther JB, and AR Denniss (2006), Return to full normal activities including work at two weeks after acute myocardial infarction, American Journal of Cardiology, Vol 97, No. 7, pp. 952-958.

Kevin Jones

New research on casino worker risks from secondhand smoke Reply

The yet-to-be-released August 2009 edition of the American Journal of Public Health has an interesting report into the health risks of casino workers in Pennsylvania from second hand tobacco smoke.  The research report is quite complex for the casual readerr but the increased level of risk to casino workers seems convincing.

According to the report, secondhand smoke

“in Pennsylvania casinos produces an estimated excess mortality of approximately 6 deaths per year per 10000 workers at risk”.

People in the casinos for 8 hours would be breathing air that would match the “unhealthy air” definition of the US Air Quality Index.

The reseacrh concludes

“It is clear, however, that Pennsylvania casino workers and patrons are put at significant excess risk of heart disease and lung cancer from SHS through a failure to include casinos in the state’s smoke-free-workplace law.”

Randy Dotinga wrote for the Health Behavior News Services on the research report and asked questions of a gambling industry representative:

“Holly Thomsen, a spokesperson for the American Gaming Association, a trade group for the casino industry, said its members are committed to “the highest level of safety and comfort” inside casinos.

Casinos serve both smoking and nonsmoking customers, she said, and “we realize that balancing the needs of these two distinct sets of patrons, as well as those of our employees who don’t smoke, is of paramount importance.”

The AJPH article reference is

Repace, J. Secondhand smoke in Pennsylvania casinos: A study of nonsmokers’ exposure, dose, and risk. Am J Public Health 99(8), 2009.

Kevin Jones

Sleep disorders and workplace safety – new research grant 1

Recently, the Australian Government awarded some research grants of which at least one is relevant to workplace safety.  $2.5 million was given for the establishment of a Centre for Clinical Research Excellence in Interdisciplinary Sleep Health (CRISH).

When the grant was announced Professor Ron Grunstein of the Woolcock Institute of Medical Research said,

“Adequate sleep is as important as exercise and diet. Sleep loss and sleep disorders contribute to mortality, chronic disease, mental health problems and the economic health burden.

“This funding will allow us to establish a network of leading sleep researchers and physicians in different specialties to investigate the biology of sleep, and look at ways to prevent and treat sleep disorders.”

Amongst several social benefits of the research, the issue of shiftwork health was mentioned.  There are many contributory factors to the health of shiftworker and sleep disorders is only one, but an important one.

WakeUpAustralia-CoverThe most recent Australian data on the costs of sleep disorders was from 2004 by Access Economics, an organisation that the government often relies on for data.  Its report, Wake Up Australia, estimates that  sleep disorders such as obstructive sleep apnea and insomnia underlie 9.1 per cent of work related injuries.

The origin of this statistic needs to be closely examined in the body of the report (page 23) as there is quite a bit of statistical magic applied however the 9.1% figure has been referred to in relation to the potential benefit of the CRISH project.  The statistic is not invalid but it is also not so simple.

Kevin Jones

Peanut allergy fatality saga to continue 3

Safety management in the education sector seems to be one of the hardest management challenges.  There are overlapping safety obligations through OHS legislation, education department guidelines, public health matters and meeting the demands of parents and students.

700 Peanuts - Federal Court coverA decision in the Federal Court of Australia on 30 June 2009 illustrates the challenges.

A 13 year old boy from Scotch College, in Melbourne, Nathan Francis, died after eating from a ration pack of beef satay on a Defence Forces camp.  The school, which was supervising the camp, were aware of the boy’s severe allergy to peanuts.

The Australian Department of Defence was fined over $A200,000.

The full judgement of the court raises several  issues that are relevant to the management of safety of people in one’s care.  The judge has recommended a State coronial inquest to determine the roles and responsibilities of Scotch College in Nathan’s death.

Justice for Nathan and his family is likely to have many more months to go. [ SafetyAtWorkBlog will follow the issue.]

A fantastic audio report on the decision is available at the ABC website. The payment of the fine back to the government is not dealt with in this blog.

The first section of the judgement (below) indicates what the judge believes are the failures that need to be addressed through an appropriate safety process:

  • Communication;
  • Instruction;
  • Provision of appropriate supplies;
  • The importance of labelling; and
  • Following procedures and guidelines

Some readers may find that this prosecution could make an interesting case study for safety management.

Kevin Jones

Justice North found that the Federal OHS Act was breached by the Commonwealth government through the Chief of Army.  The respondent

(a) supplied Cadet Nathan Fazal Francis, Cadet Nivae Anandaganeshan and Cadet Gene van den Broek with one-man combat ration packs (CRP’s) containing a satay beef food pouch which contained peanuts or peanut protein for their consumption despite having been informed that the said cadets were allergic to peanuts;
and, in so doing, it failed to:

(b) warn parents of the [Australian Army Cadets] AAC cadets about the contents of the CRP’s;

(c) warn AAC cadets about the contents of CRP’s;

(d) warn AAC cadets with pre-existing food allergies of the contents of CRP’s;

(e) make appropriate use of information provided by AAC cadets and parents of AAC cadets regarding pre-existing or known allergic conditions and correlate that information with the potential risk of being exposed to allergies through the supply of food contained in CRP’s;

(f) ensure that the contents of CRP’s allocated to AAC cadets did not include food products or allergens that may have triggered allergic responses by removing or requiring the removal of peanut-based food products from CRP’s;

(g) prevent distribution or provision of peanut-based food products to AAC cadets with pre-existing allergic reactions by:

i. inspecting the contents of CRP’s to be allocated to those individual AAC cadets who had given notice of allergic conditions;

ii. isolating cadets with pre-existing medical conditions and/or notified food allergies at the time of distribution of CRP’s and issuing them with CRP’s that did not contain peanut products or other food allergens;

iii. removing all CRP’s known to contain peanut protein or other food allergens from circulation amongst AAC cadets;

iv. requiring all AAC cadets with notified allergic conditions to provide their own food supplies;

(h) issue any or any adequate instructions or provide adequate supervision regarding distribution of CRP’s;

(i) issue any adequate instructions or provide adequate supervision regarding consumption of contents of CRP’s;

(j) prevent the consumption of CRP’s containing food allergens by AAC cadets with food allergies;

(k) distribute CRP’s after consulting or considering pre-existing medical conditions; and

(l) take into consideration the findings of a report dated 22 November 1996 by the Australian National Audit Office entitled ‘Management of Food Provisioning in the Australian Defence Force’.

SafetyAtWorkBlog Progress 1

The middle of the year is a good place to measure progress.  Since its inception in February 2008, SafetyAtWorkBlog has been viewed almost 42,000 times.  The site has received almost 300 comments and 434 articles have been posted.

For a site that inhabits a niche area, does not receive advertising revenue and provides commentary and unique content almost all the time, the blog is a proud achievement.

Thanks to all the regular viewers.

Kevin JonesBlog stats

Cheeky workers compensation premium statistic 1

“The premium has dropped eight per cent from last financial year. This is the third consecutive drop in the Commonwealth sector premium rate.” [my emphasis]

Fantastic news – eight per cent reduction in 12 months!  The media release goes on:

“… this is a very pleasing result for Commonwealth agencies as it indicates injuries are continuing to fall due to effective prevention strategies that promote safer workplaces.”

The second quote is from Martin Dolan, CEO of Comcare in Australia, on his second-last day in the job.

But 8%? In one year?

The Comcare media release includes a table of premium figures for the five years.  The overall premium rate in 2008-09 was 1.36%.  For 2009-10 it will be 1.25%, that’s the 8% fall in Comcare media release terms.  In reality it is a fall of 0.11%

The premium rate is indeed low and it may be justified in congratulating Comcare on a job well done but expressing such a fall as  8%?  This is a cheeky farewell statistic for a CEO which should have said

“a 0.11% fall from 2008-09 and a decline of 0.5% over 4 years”.

This is surely a fairer statistic and a worthy achievement in itself, if not quite so sexy.

Kevin Jones

UPDATE: 1 July 2009

Martin Dolan is moving to the Australian Transport Safety Bureau.

Safety culture improvements in Spain Reply

The improved safety status in workplaces that have an active union presence has been verified through research, but what of the efforts on safety management from outside the union research efforts.

Below is the abstract of an article that was published online late-2008 (and is available for purchase).  The research was conducted in a country with a negative safety culture so the improvements may be more marked than from outside Spain.  However, the full study (not accessed by SafetyAtWorkBlog) may provide an interesting before-and-after story.

“Occupational accidents severely deteriorate human capital, and hence negatively affect the productivity and competitiveness of countries. But despite this, we still observe a scarcity of preventive practices, an unsatisfactory management commitment and an absence of safety culture among Spanish firms. The result is evident in firms’ high accident rates.  This situation is a consequence of the general belief among firms that investing in safety is a cost, and hence has negative repercussions for their competitiveness.  The current work aims to identify good practices in safety management, and analyse the effect of these practices on a set of indicators of organisational performance.  For this, we first carry out an exhaustive literature review, and then formulate a series of hypotheses.  We then test the proposed model on a sample of 455 Spanish firms.  Our findings show that safety management has a positive influence on safety performance, competitiveness performance, and economic-financial performance.  Hence they provide evidence of the compatibility between worker protection and corporate competitiveness.”

The full article is available in Safety Science (Volume 47, Issue 7, August 2009, Pages 980-991).

Kevin Jones

B Fernández-Muñiz, J Montes-Peón and C Vázquez-Ordás, ‘Relation between occupational safety management and firm performance’ (2009) Safety Science 47: 980-991.