On July 1, 2020, Victoria receives the Workplace Manslaughter laws that it missed out on by a bee’s whatsit in 2002. Premier Daniel Andrews will complete another election pledge and will be seen as a champion for Victoria’s workers. The Workplace Manslaughter laws will provide some bereaved relatives with comfort and a belief that bad employers will be punished for neglecting their occupational health and safety (OHS) duties to provide safe and healthy work environments. Punishment is possible, but unlikely.
The first thing that Victorians need to understand is that Workplace Manslaughter laws are not about OHS, they are about politics. It is no coincidence that both Queensland and Victoria’s Workplace Manslaughter laws emerged during election campaigns. Both branches of the Australian Labor Party (ALP) needed to say something about workplace relations that did not involve the hotbed of industrial relations, especially when so much IR change would bring in National politics.
OHS allows people to talk about IR without the trade union politics. OHS is not about money, it is about quality of life and who, in politics or elsewhere, will say that deaths at work are an acceptable consequence? The ALP leaders were on a winner and were able to take some moral high ground and criticise business groups on an issue against which business leaders could not argue.
The importance of preventing deaths at work is indisputable and many have claimed that Workplace Manslaughter laws will prevent deaths. What they fail to acknowledge is that a prosecution under these laws can only occur after a worker has died. Advocates hope these laws prevent deaths but only after someone has already died!
This does not fit with the purpose of the modern OHS laws that have existed in Victoria since the 1980s. The duty on all employers is to “provide and maintain a working environment that is safe and free of risks to health, so far as is reasonably practicable”. This is not an optional obligation; employers must do this. (Ignore “reasonably practicable” because that is only relevant after a death or serious injury and does not help prevention)
The Victorian Government gets attacked regularly for not doing enough to protect workers, but this is a misdirected attack, as it is Victorian employers who have the responsibility for safe and healthy workplaces. The Government’s role, through WorkSafe Victoria, is to educate employers on ways to meet their legislative obligations which should, hopefully, provide safe and healthy workplaces. WorkSafe will also inspect workplaces and work processes should they be informed of a serious incident or death at work, or non-compliance.
Laws, by themselves, cannot save lives. The following of OHS laws by employers and workers should save lives. The enforcement of OHS laws should save lives. You cannot enforce Workplace Manslaughter laws because these laws only impose a new penalty on employers and make no changes to employers’ OHS duties.
Complying with OHS laws should remove any possibility of being prosecuted for Workplace Manslaughter, but you would not know this from the Workplace Manslaughter debate. Workplace Manslaughter laws are not about improving safety, they are about looking tough to the electorate by promoting laws that are unlikely to be used and, if they are, have little chance of succeeding except in rare situations.
The prevention of deaths at work is far more likely to be achieved by a suitable resourced and skilled OHS regulator, but WorkSafe’s level of funding is insufficient for it to be as effective as the community expects. In fact, millions have been removed by the Andrews Government from WorkSafe to assist with consolidated revenue or to fund infrastructure projects. This money, paid by Victorian employers to fund Worksafe and workers’ compensation, is used on expenditure that offer no safety benefits to the workers, or to the employers paying the Workcover premiums.
Victoria’s Workplace Manslaughter laws are intended to be a cheap, visible way of improving OHS by scaring employers, instead of providing support and oversight to employers through WorkSafe.
Lawyers and legal association have submitted that these laws are not needed as negligent and reckless employers can already face jail sentences under OHS laws. But this stance is about Law and not Safety. The distinction is often ignored.
The still unanswered question about Workplace Manslaughter laws is whether the threat of jail time will cause employers to improve health and safety to the extent that workers will not die. The evidence in other jurisdictions like the Australian Capital Territory and the UK is No. Employers have been sent to jail, but whether this has changed the safety behaviour of other employers is uncertain.
What is certain, is that a suitably resourced and skilled safety regulator will prevent deaths by providing advice and oversight. Employers will have explained to them what safety and health measures are required by law, and the community, and the consequences of not actively applying those duties.
This week, the first successful prosecution under Queensland’s Industrial Manslaughter law will occur. The company, Brisbane Auto Recycling, has pleaded guilty to Industrial Manslaughter and could face a multi-million-dollar penalty. The two directors of the company have not pleaded guilty to Industrial Manslaughter, only to Reckless Conduct. They may face jail, but they may be deported instead. Regardless of the penalty, one worker has died. A work colleague reversed a forklift killing him, and many lives have been ruined as a consequence. How will a Workplace Manslaughter prosecution have stopped that forklift? It cannot, but the effective enforcement of OHS laws and duties could have.