On the issue of Industrial Manslaughter laws, Lana Cormie (pictured far right) said:
“Employers need to have motivation to do the right thing, ’cause clearly they don’t do it off their own back. So, if that means, if this’ll be the difference between them making OH&S a high priority and not, then it needs to be done. And I think all the other benefits for the men on the ground, and the women on the ground, will filter down from that. “
Her comments on International Workers Memorial Day emphasises that the introduction of these laws is not so much about new laws but the failure of the existing ones and of their application. Over time, the general commitment to implementing occupational health and safety (OHS) has declined in many workplaces or, at least, has not progressed in the way expected by the safety law makers of the 1970s and 1980s.
Government has relied on the increase of financial penalties as the major deterrent for OHS breaches when the focus, it appears now, should have been on improvement rather than punishment. Governments have partly recognised this and introduced Enforceable Undertakings, another legal tool that does not progress OHS as much as allow employers to catchup to the level of compliance that would, likely, have prevented the incident or the death.
The increase in penalties and the soft approach to enforcement, that many believe to have become the norm, has allowed for insurance companies to find a ready market for policies that cover the financial costs of any OHS prosecution, in the unlikely event a prosecution occurs. These policies have been objected to by lawyers at the same time as acknowledging there is nothing illegal about them. But many believe there is something immoral about these insurance products that allows employers to avoid the consequences of their actions when those lead to a serious injury or workplace death.
The immorality of the insurance policies is partly responsible for the Australian trade union campaign for Industrial Manslaughter laws. The justice promised by OHS laws and their enforcement is rarely achieved in a world where safety regulators are loath to prosecute but who increasingly accept weaker Enforceable Undertakings, and where employers can insure against penalties. It is little surprise that people are demanding a “big stick” approach. Incarceration ups the consequences of negligent OHS decisions and negates the benefit of the insurance policies. The policies cover financial penalties but cannot protect against jail time.
There is also an inequity about penalties that Dr Gerry Ayres has pointed to in an interview recently and reinforced at an International Workers Memorial Day workshop:
“…. if I run a red light in my car and I kill someone through my action, it might not be deliberate, I might have been in a hurry, whatever, I can lose my licence and I can go to gaol. If I am caught drink driving or I have had far too much to drink and I jump in my car and I kill someone in my car I will go to gaol. If I’m an employer and I kill one of my workers through not doing what I should have done, I’ll get a fine and most likely it’ll be around about the $50,000 mark maybe. If [I am an employer and] I get caught, the worst that could happen to me is a financial penalty.”
His point is that financial penalties are no longer a deterrent and that the removal of personal liberty and freedom is the only consequence left that will be feared by employers. This realisation is also occurring to the corporate regulators after seeing the disdain for regulations and the regulators on display at Australia’s Royal Commission into Banking and Financial Services.
It was clear several years ago that the self-regulation of banking and OHS was not achieving the outcomes government expected. It was introduced because business said “trust us” and it was cheaper for governments to administer, but large business and small have exploited the trust that came with self-regulation. The consequences of recent revelations of the corruption in finance, and negligence in workplace safety, has backed governments into situations where incarceration must be considered.
Will Industrial Manslaughter laws achieve improvements in OHS for Australian workers? It is doubtful, however that is not really the intention although it may be the hope. The introduction of these laws is an attempt to close off corporate loopholes by imposing a type of penalty that cannot be insured against. The weakness in this aim remains the commitment to prosecution by safety regulators who are affected by the will of whichever political party is in power at the time.
Dr Gerry Ayres told a trade union campaign meeting that
“It is argued that regulation and personal liability, reinforced by criminal enforcement, is perhaps the single most important motivator for a CEO in relation to their responsibility in ensuring high level OHS standards are both implemented and maintained at their organisation’s workplace. “
The challenge is not that Industrial Manslaughter laws are introduced but that they are applied and enforced consistently and effectiveley.
Ayres’ observations occur at the same time that the OHS Leadership and Commitment expectations of company executives is increased in line with new criteria included in the International Standard for Occupational Health and Safety Management Systems – ISO45001.
Cormie’s comment above shows a belief in leadership and commitment trickling down throughout a company. This supposed effect has been shown to be a nonsense in economics and of dubious benefit in OHS. Ayres’ traffic accident comparison is far more persuasive as it is difficult to counter, without being seen as a heartless bastard. Industrial Manslaughter laws may bring equity to sentencing but there seems little evidence that they improve workplace safety by reducing risks – by themselves.
It is not only the application and the enforcement of the WHS laws, it is the structure of these laws and their designed application that tells us we are still stuck in the era of Robens’ philosophy – self-regulation and encouragement over and above enforcement and inchoate offending.
We have no issue at all with handing down fines that run into the millions for breaches of consumer laws but when it comes to causing death, our laws remain cemented in the 1970s ideology of shying away from regulating business enterprise.
The problem I have with the idea that we need industrial manslaughter because it will deter unsafe business practices is that that law does nothing but serve as yet another symbolic gesture. Be damned – we have to stop with the mindset that just having a law there will act as a preventive measure! It won’t. It just becomes another piece of legislation that looks serious but does little else.
The ACT has had this crime on their statute for 15 years! How many prosecutions have their been? How many charges laid?
My son was killed in 2004 in South Australia. In the repealed Occupational Health and Safety Act 1986 (SA) an aggravated offence existed that included a prison sentence. It had not been applied in the decades before his death and it was not applied when I approached the Crown and the then regulator to consider it. Why? They said they could not establish that his employer was reckless. Really? Six years later and during a coronial inquest I was able to access much of the brief of evidence into my son’s death. His employer stated along the lines of this… “there could have been 50 emergency stop buttons on that thing (the boring machine) and it would not have helped him once he was dragged in…” In the context of the statement given, it was plainly clear his employer held the view that this machine was deadly with a ‘reasonable foreseeable’ consequence that it could cause death but there was no will to use that evidence. I had no idea it existed and it wasn’t until I completed my law degree that I realised its significance.
Do you really think making a law called Industrial Manslaughter will change a anything?
The problem with these ‘symbolic’ measures is that they leave families bewildered after the long investigations into the death of their loved one ends up on the ‘too hard’ pile …. and meanwhile the rest of the world goes back to business as usual.
The fact is that our WHS regulatory system is wholly structured around quasi crime. The regulator is structured around encouragement rather than enforcement and all the while, governments are draining resources from the court system. Fix that first and then maybe we can talk about real crime.
Andrea,
My condolences on your loss and I certainly understand what you are saying. I agree with your sentiment but still believe that there needs to be further remedy available at law if a message is to be delivered.
Law works best as a deterrent when it is enforced. If there is money being sucked out of the judicial system, the law becomes nothing more than symbolic.
When you talk about remedy, I think about the ‘harm’ that a workplace death does to the people left behind. We all want justice. The truth is, if the regulator chooses not to prosecute (and most deaths are not prosecuted) then what recourse is there for the family to seek justice? Their civil rights have been all but neutered. The forgotten ‘tort’ breach of statutory duty – not available. Mostly the right to sue is even removed. I have no issue with law that provides remedies — let’s start with the most basic of civil rights? The right to right a wrong.
Every single workplace death should be subject to an inquiry – without exception. Only then will we actually get to the bottom of what causes a death and provide industry specific information to work as a preventative. Where such an inquiry identifies a level of gross negligence, then lets look at what they have done in the UK with their dual layered manslaughter laws. With over 30 successful convictions, I am thinking we can learn something from them. But it should reflect broad corporate crime and it should fall under the criminal code.
Then let’s talk about proper sentencing guidelines … where forensic accounting becomes a part of the sentencing consideration and the size of an organisation is an absolute consideration to the financial sanctions. It fries my brain cells that in Australia in recent weeks there has been over $20M in fines imposed on a just 2 companies by the federal court because they broke consumer law …. but we struggle to drag 20% of a fine maximum out of an employer who causes death!
Our statutes are full of poorly drafted laws that were a by-product of political upmanship – rather than any real desire to save lives. All they do is hurt innocent people more because they end up being massive disappointments at a time people need to believe in something.
Kevin,
Your comment regarding “The immorality of the insurance policies” is an important point and has definitely impacted on the renewed calls for more effective action. I have always questioned the effectiveness of financial penalties – many businesses simply view them as a cost of doing business rather than as a deterrent. I have always been puzzled by the continued review and increase in the financial penalties when all the anecdotal evidence suggested that they weren’t effective, nor were they being levied anyway.
The inequities in application of WHS laws has always been a concern and, until the penalty for inept/negligent/absent WHS processes is appropriate, we will not see the improvements that the unions (and others) demand. Having said this, the reluctance of the regulator to take action against miscreant, delinquent and repeat worker offenders has also inhibited the improvement process.