Toothless enforcement

Ross Gittins is a prominent Australian economics journalist. In The Age on September 20, 2023, he wrote an article about the recent spate of corporations being prosecuted and penalized for breaking the law. Many of his points can also relate to companies and executives breaking occupational health and safety (OHS) laws.

Gittins rattles off many of the corporate misbehaviours covered in the media recently – QANTAS, wage theft, PwC, and the banks from a few years ago. He wrote:

“It’s hard to believe that in all these cases big businesses, with their own legal departments, didn’t know that what they were doing could be found to be against the law. Much easier to believe they thought the chances of being prosecuted were low. 
It’s possible some thought that, should they be prosecuted, they could afford the legal firepower to find a way to get them off the hook. But I think the main reason so many big companies have been acting as they have is their confidence that they wouldn’t be prosecuted.” 

In OHS, the employer is primarily responsible for the psychological and physical health and safety of their workers, as far as reasonably practicable (ASFAIRP). An unofficial but pragmatic element of ASFAIRP will be an assessment of prosecution and personal accountability if OHS is found to be ineffective by means of a worker injury or death. The possibility of prosecution is low due to the perpetual under-resourcing of OHS inspectorates. It is even lower when one considers the preference to not prosecute by the OHS regulators due to insufficient funding and the reluctance to pursue test cases. Such cases offer important clarifications to legal obligations but have not been conducted for years.

Gittins asks:

“But why have chief executives been so confident their misdeeds would go undiscovered and unpunished? Because for a long time, it was pretty true. 
In the now-ended era of ‘‘ neoliberalism ’’ – the doctrine what’s good for business is good for the economy – governments used nods and winks to let corporate watchdogs , competition and consumer watchdogs, and wage watchdogs know their job was to look impressive without biting anyone.”

This situation is less true of OHS but there are still institutional processes that diminish the consequences of poor OHS management and negligence. Enforceable Undertakings (EU), for instance, are an accommodation of the lack of resources and funding and a way of avoiding the personal consequences of poor, inadequate management of work health and safety risks. EUs can and have been used to avoid a likely prosecution because that consequence would void an accreditation or cancel eligibility for future contracts. OHS needs such consequences to show the seriousness breaching OHS laws.

Industrial Manslaughter laws were introduced as a show of political commitment and strength but are hampered by many of the structural and institutional limitations mentioned above. There are many more practical and prosecutorial ways of enforcing OHS compliance but these have been eroded over many years compounding the perception that inspectors don’t visit and prosecutions are unlikely.

Gittins wrote:

“In the post-neoliberal world, there’s much cleaning up to be done.” 

The neoliberal age may be over (I doubt it) but the ideologies and beliefs of over forty years of profit-driven, callous business practices remain. OHS is not taken seriously by most businesses because they didn’t have to. Profit and shareholder returns overrode the mental and physical welfare of workers. The bare minimum in OHS was done. Employers only complied with what is reasonably practicable and ASFAIRP was often below the level of health and safety to which workers were entitled.

If the neoliberal age was over, Treasurer Jim Chalmers’ wellbeing budget and frameworks would not be fringe considerations, the United Nations’ Sustainability Development Goals would be central to government policies and strategies, and business and OHS regulators would be suitably resourced and active. That resourcing would not need to be in place forever. The message would eventually get through to employers and corporate executives – treat your workers with respect and decency.

Kevin Jones

One thought on “Toothless enforcement”

  1. OHS regulators have long known the need for vigorous enfo.
    It this is too hard for the current crop they should be replaced

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