Industrial Manslaughter and the Big Picture (2004)

In 2004, the hottest occupational health and safety (OHS) topic was industrial manslaughter.  In Melbourne, there were seminars on the topic that easily topped 200 participants.  However it was also a year of confusion and fear, which may have accounted for the good seminar attendance figures.

At that time I was producing an online PDF Magazine and I devoted a whole edition to the topic. Now it is a time capsule of the issues and objections raised at the time which provide a useful context to the current debates. Here is my article on the issue from August 2004, slightly edited with links included, where possible.

In Australia, in a very short period, considerable information was made available on Industrial manslaughter laws and occupational health and safety (OHS) penalties. This article is a reflection on some of the issues raised in these documents and seminars.

Earlier this year the Australian Capital Territory, the “state” where Australia’s capital Canberra is, introduced Industrial Manslaughter legislation. Other States have threatened to do so, or considered doing so over the last few years but political decisions, largely, have taken it off the agenda. New South Wales unions, in particular, have not given up on the matter and in recent months have had some success in getting the NSW government to look at the issues.

The NSW Parliament established an Upper House committee review on Serious Injury and Death in the Workplace. The process was chaired by Reverend the Honourable Fred Nile MLC. Fred Nile has been notorious throughout Australia for his opposition to the gay lifestyle and his strong feelings against abortion. However in New South Wales and in the safety industry Fred Nile is equally known for his involvement in the current review and the parliamentary inquiry in the 1990’s that developed into the recent NSW OHS Act.

Around the same time that the NSW Parliament established Fred Nile’s inquiry, the NSW Industrial Relations Minister, John Della Bosca established his own enquiry which was headed by Professor Ron McCallum and three experts in OHS law.

In Victoria, there was a review of the OHS Act by Chris Maxwell QC. It was a broad review of the Act and its application but it also needed to address the issue of Industrial Manslaughter. It found that existing legislative penalties did not require Industrial Manslaughter laws. There was sufficient powers for change and improvement if the level of enforcement and education was increased.

The Nile Report came to a different conclusion. In the Nile Report – Serious Injury and Death in the Workplace – the Australian Manufacturing Workers’ Union (AMWU) admitted that

“…..The standard of care which might be exercised by a reasonable corporation is a difficult concept to define, and may prove confusing to juries.” (P. 126)

Mr. Cowdery of the Director of Public Prosecutions, explained that of the six cases arising out of workplace deaths that the DPP had examined it was the level of evidence necessary to prove beyond reasonable doubt that the accused was grossly negligent that had prevented successful prosecution. In each case, the DPP was unable to prove beyond reasonable doubt that the accused had been grossly negligent. (p.126)

Mr. Bastian, for the AMWU discussed the difficulty of attributing criminal liability to corporation with a practical example:

“…… as the law stands in terms of common law manslaughter, unless you are a director who has got hands-on work on the shopfloor and hands-on knowledge, you are not going to be subject to manslaughter charges. That is, the further up the tree you go— the larger the corporation—the harder it is under the common law test to find a conviction against individuals who the Occupational Health and Safety Act says have ultimate responsibility. It is impossible to get a conviction against a corporation.” (P. 126)

Many speakers identified the challenges of succeeding with a prosecution against a corporation. The inverse position would be that the small- and medium-sized industries would be more exposed to an Industrial Manslaughter prosecution due to the flat organisational structure and the closer informational links between senior management and the shopfloor. This uneven level of compliance pressure was acknowledged in the hearings to the Committee but the focus of the Inquiry was principally to investigate ways of cutting through the corporate structure/safeguards/ stonewalls and refuges for scoundrels.

Mr. Peter Rozen, a barrister and expert on OHS Law in Victoria identified a more fundamental problem with the application of law to a corporation. His comments indicate that a campaign to change the OHS law needs to be fought on several fronts. Legal Reform is greater, and perhaps gets more attention and resources, than OHS law reform. Mr. Rozen said

“I take the view that the law should operate within the workplace in the same way that it operates outside the workplace: that is, that grossly negligent conduct within the workplace should be able to be prosecuted and punished in the same way as grossly negligent conduct outside the workplace. The way that the common law is in Victoria—and in New South Wales it is no different—is that effectively a legal immunity applies to large and even medium-size employers under the law as it stands in relation to offences where gross negligence has to be proved—for example, manslaughter or causing serious injury by gross negligence.

The difficulty arises because of the clumsy, in my view, way in which the courts have tried to develop rules that enable the prosecution to prove whether a corporation is grossly negligent or not. There has not been developed in the common law a mechanism for deciding if a company—a corporate employer, for example—is grossly negligent that takes into account the true structure of corporations. By focusing, as the courts have done, on directors and other senior officers within those corporations, they have not properly developed rules that enable them to determine whether a corporation has been grossly negligent or not.” (P. 127)

A fundamental motivation for the call for Industrial Manslaughter legislation is identified in a value statement from the family members of dead workers. The Nile Report says

“The calls for an industrial manslaughter offence were particularly strong from family members of workers who died as a result of an industrial accident, who claimed that if their relative had been killed in a non-work context, those responsible were more likely to convicted and gaoled.” (P. 130)

This motivation is a major element, I believe, in the push for new laws. I suspect that the movement is not based on revenge but a strong sense of injustice. I am sure there is an academic stream on comparative law that should deal with this. Maybe we need to wait for the sociologists to get around to this.

It is this perception though that is also creating suspicion in the legal fraternity and in the lawmakers. The perception of revenge, or the response to pressure, makes lawmakers nervous. No politicians want to be seen to be acting directly in response to public pressure in circumstances when there is substantial “private” pressure coming from influential competing groups such as corporations and senior managers. Of course, we have seen that these people are least likely to be prosecuted in the existing legislative climate however they always take a considerable interest in these legal changes because they often feel that they have the most to lose. I would suggest that the small business operator would have the most to lose as they rarely have a Plan B. They don’t have the option of fading away with a substantial “retirement” benefit. Bankruptcy is not often an attractive career move.

The Workers Health Centre put the position of personal accountability for workplace death quite clearly and acknowledging the need to change corporations law.

“We call for those in control of workplaces to be held accountable for acts or omissions that result in death or serious injury, for penalties to be applied against individual directors, and not just middle management scapegoats.

In line with changes needed to corporations laws, there is a need to impose criminal liability on directors and senior managers – the crime should follow the person, to stop company liquidation allowing perpetrators to go free; ranges of sentencing options should be explored – custodial sentences, community sentencing, disbarring from conducting businesses in the future; all employers including public servants and partnerships to be treated the same.” (page 131)

In opposition to the introduction of new laws there is a strong position in some areas that the existing law is sufficiently powerful to prosecute employers. This may be the case but as I have said above, employers are already being prosecuted. The impetus for the calls for change are not necessarily a criticism of existing laws but a social call for the equitability of justice and the application of the law.

Hugh McMaster of the New South Wales Road Transport Association (NSWRTA) stated that:

“…until such time as the existing provisions are utilised to a greater degree industrial manslaughter laws, as a method of combating OHS related injury and death, would have no firm basis for their creation.” (Page 132)

My question of the NSWRTA would be, are they then supporting that the “existing provisions” should be “utilised to a greater degree”? I don’t know that their members would agree.

As I am not a lawyer I cannot contest their positions but the implication behind the position that existing law is sufficient is that, if there is community dissatisfaction, then it must be the application of the law which is the problem. This throws the focus onto the WorkSafe and WorkCover authorities for not enforcing the law.

Chris Maxwell QC acknowledged as much in his review of the Victorian OHS Act. He strongly recommended that WorkSafe Victoria communicate more with the community, specifying and reinforcing the employers’ and employees’ safety obligations. He recommended that the Authority produce safety “rulings” so that compliance clarifications are made in specific circumstances.

For over 18 years Australia has had OHS law that specifies the safety obligations of employers and, to a lesser extent, employees. The campaign for Industrial Manslaughter law is an indication that the point has been reached where the public believes that employers who operate with a disdain for worker safety, have absolutely no excuse for doing so, and should be punished accordingly. The lead-in period, the transition from one safety law regime to the next, is well and truly over. The industry associations have had this long to educate their members on their obligations but have they done sufficient?

As shown by the NSWRTA comments above, employer associations have often educated their members on how to comply with the law, rather than how to maintain a safe workplace. These are two very different goals and although the Industrial Manslaughter debate seems to be about one issue – workplace safety – it is in fact a discussion on one side about safety and about legal compliance on the other.

Katy Gallagher has said that since the introduction of Industrial Manslaughter law in the Australian Capital Territory, the attendance by CEOs and senior managers to seminars about workplace safety has increased dramatically. This is no indication of the threat of this law as a deterrent or as a tool to improve safety. CEOs are attending to clarify their (new) accountability. Other States that have only threatened to introduce this law have had similar seminar booms.

The Nile Report contains discussion on how Industrial Manslaughter law has improved OHS. There is no clear position arrived at. I suspect that the threat of introducing this law has generated business for creative risk managers rather than any improvement in safety.

Perhaps also, the calls for new laws are part of the current focus on safety culture. I have clients who believe that they have achieved as much as they can in terms of improving safe systems of work. They point out that injuries are occurring because workers are not doing the right thing. The government regulators would respond by saying that any wrong action identify deficiencies in the system of work. Safe systems of work are part of an amorphous beast called safety culture that, supposedly, reflects the attitudes and priorities of a company in respect of elimination of pain and suffering. Safety culture is, itself, part of the larger corporate culture of which the Nile Report links to the ACT’s Industrial Manslaughter law.

Penny Shakespeare, Director of the Office of Industrial Relations in the ACT Chief Minister’s Department discusses, on page 137, the Model Criminal Code that the legislation uses to clarify offence and punishment. The Code states:

“…if intention, knowledge or recklessness is a required fault element of an offence, that fault element exists on the part of a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.”

The Report also says that the test may be satisfied by proving:

  • “that the board of directors intentionally, knowingly or recklessly engaged in that conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence
  • that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in that conduct and expressly, tacitly or impliedly authorised or permitted the commission of the offence. This test will not be satisfied if the body corporate can prove that it exercised due diligence to prevent that conduct
  • that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to con-compliance with the relevant provision or that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.”

‘Corporate culture’ is defined in the Code to mean:

“an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or within the area of the body corporate in which the relevant activities take place.” (page 26)

The following factors may identify the corporate culture include:

  • “whether authority or permission to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate
  • whether the servant, agent, employee or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.”

It seems to me that many of the answers to improving occupational health and safety are to be found, or at least the germination of answers, in the developing attention of sociologists to workplace safety. In the past they have focused largely on gender issues and comparative industrial relations studies. “Pay and conditions” has rarely had OHS specified as part of the conditions. Some sociologists are beginning to realise that workplace safety is a relection and motivator of public values, and an easier area to study.

Perhaps when the decades of sociology on Culture begin to be applied critically to the issues of Behavioural-Based Safety, Industrial Manslaughter and Corporate/Safety Culture, we will see a uniformity of terminology, a commonality of purpose, an equal commitment and a practical manifestation of a belief in the sanctity of life. Until then we must look at the Nile Report and other investigations in a broad context. At the moment we are focusing on the trees and not the wood.

Kevin Jones (2004)

Categories accountability, business, death, Duty of Care, evidence, law, lawyers, manslaughter, OHS, research, risk, safety, Uncategorized

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