Duty of Care – Page 47 – SafetyAtWorkBlog

Minerals Council and Industrial Manslaughter laws

On 1 February 2019 the Minerals Council of Australia issued a media release about occupational health and safety (OHS) in the mining industry and, in particular, Industrial Manslaughter laws. SafetyAtWorkBlog approached the MCA’s CEO, Tania Constable, for clarification.

The release stated:

“The MCA cautions that the introduction of Victorian Government’s industrial manslaughter laws will give rise to unintended consequences which impair, rather than enhance, health and safety outcomes at Australian workplaces. These laws will not contribute to general or specific deterrence or improvements in health and safety outcomes. This must be the priority, not imposing oppressive and unnecessary criminal liability on selected individuals”

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In an industry where there are no employers, who is responsible for workplace health and safety?

The Victorian Government has been running an inquiry for a little while on the “on-demand workforce”, a term which seems to be a synonym for the gig economy. The government recently extended the deadline for public submissions. This is often a sign that inquiries are struggling for information which is almost an inevitable consequence if you schedule an inquiry over the Christmas/New Year break.

This inquiry has direct relevance to occupational health and safety (OHS) and vice versa.

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Would Reckless Endangerment improve safety and health more than would Industrial Manslaughter laws?

The reckless endangerment provision of Victoria’s Occupational Health and Safety Act 2004 is likely to be crucial to this year’s discussions on Industrial Manslaughter laws and the management of workplace health and safety more generally, particularly as Victoria’s Minister for Workplace Safety, Jill Hennessy, has announced an implementation taskforce that includes a Workplace Fatalities and Serious Incidents Reference Group.

Section 32 says:

“A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence and liable to—
(a) in the case of a natural person, a term of imprisonment not exceeding 5 years, or a fine not exceeding 1800 penalty units, or
both; and
(b) in the case of a body corporate, a fine not exceeding 20, 000 penalty units.”

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Banking Royal Commission and corporate culture

Occupational health and safety (OHS) has come late to seeing its operations as part of the organisational culture of Australian businesses. Its realisation started with an assertion of a “safety culture” that operated in parallel with regular business imperatives but often resulted in conflict and usually on the losing side. OHS has matured and become less timid by stating that OHS is an integral part of the operational and policy decision-making.

Some of that business leadership that was admired by OHS and many other professions existed in the banking and finance sector which has received a hammering over the last two years in a Royal Commission. That investigation’s final report was released publicly on 4 February 2019. The report reveals misconduct, disdain, poor regulatory enforcement and a toxic culture, amongst other problems. The OHS profession can learn much from an examination of the report and some of the analysis of that industry sector over the last few years.

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More than warm lettuce needed on Industrial Manslaughter laws

Applying the most effective way to have companies comply with their occupational health and safety (OHS) obligations has been debated in Australia and elsewhere for years. The issue will arise again in 2019 and in relation Industrial Manslaughter laws as Australian States have elections, or the political climate suits.

There are several elements to the argument put by those in favour of Industrial Manslaughter laws. Workers are still being killed so the deterrence of existing OHS laws has seen to have failed. Deterrence has been based on financial penalties and workers are still being killed so financial penalties have failed. Jail time is the only option left.

This is a simplistic depiction of the argument, but it is not dissimilar to some of the public arguments. The reality is that deterrence is achieved in two ways – telling the person of the consequences of an action and enforcing those consequences.

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Heat

The occupational risks of exposure to excessive heat have usually been assessed in remote locations in Australia, and almost exclusively for outdoor workers. The changing environmental conditions, regardless of the global cause, are changing the risk assessment of heat for outdoor workers and, increasingly, indoor workers such as those in food production or kitchens.

Recently Safe Work Australia released a seminar online which discussed the issue of heat in the occupational health and safety (OHS) context.

The panel discussion operates from the perspective of what can be done rather than what could be done and remains within the occupational context. Professor Dino Pisaniello mentioned his recent research into the issue, which looks like it was meant to be the focus of this seminar and which found:

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Is workplace health and safety still relevant?

A quiet revolution is happening in workplace health and safety in Australia. I don’t mean the laws – that boat sailed with the failure of the attempt to harmonise laws and tweak them for the new Century. The change is coming from a realisation that what is still mostly called Occupational Health and Safety (OHS) has been misunderstood and misapplied, especially in the context of work-related psychological hazards.

OHS emerged in its most contemporary form in the 1970s in the UK and manifested in new laws in Australian States in the 1980s. These laws stipulated that the primary duty of care for the health and safety of workers AND those affected by the work processes suits with the employers (ignore the absurd modern variation of employer in the Work Health and Safety laws – the PCBU – Persons Conducting Business or Undertaking as only lawyers really use the term. Some prominent lawyers pronounced the acronym as “Peek-A-Boo” (you know who you are) as if OHS was a barely-held-together nightie! It was juvenile and didn’t help). Workers have a duty to not harm themselves or others and to support the employer’s OHS processes.

Category: Duty of Care

Minerals Council and Industrial Manslaughter laws

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In an industry where there are no employers, who is responsible for workplace health and safety?

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Would Reckless Endangerment improve safety and health more than would Industrial Manslaughter laws?

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Banking Royal Commission and corporate culture

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Heat

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Is workplace health and safety still relevant?

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