One of the major criticisms of Industrial Manslaughter laws by this blog is that the laws are likely to be a distraction from actions and changes that could prevent deaths. In 2018, the Australian Parliament conducted an inquiry into industrial deaths within which the prevention of death and injury was core. The recommendations of the inquiry’s final report – “They never came home—the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia” – have never really been acted upon, a fact mentioned in Australia’s Senate on June 11, 2020.
On May 20, 2020 Industrial Manslaughter became an offence applicable to Queensland’s mining and resources sector, sometime after the offence was applied to all other Queensland businesses. Industrial Manslaughter (IM) laws have always been as much about politics as they are about penalties, deterrence and occupational health and safety (OHS).
Some of the politics is shown by the responses from Queensland business groups (sounding like spoken through gritted teeth) but to really understand these laws, it is worth looking at the Second Reading of the omnibus Bill that included the IM amendments as politicians in several other Australian jurisdictions will face the same issues. It is also useful for OHS people to understand the political and legislative context of the penalties their employers may face.
Also, in the last week of May 2020, the first company to be successfully prosecuted under the IM laws will be sentenced, Brisbane Auto Recycling. The company’s two directors have pleaded guilty to reckless conduct and will also be sentenced.
Last weekend across the road from home, two workers were on the roof of a three-storey apartment block construction installing or inspecting solar panels. No fall protection, no harnesses. I grabbed my phone to notify my local WorkSafe about this unsafe work activity. The switchboard was closed, and the phone number listed on the website was identified as only for emergencies. Was this an emergency? Not sure. By the time I worked it out, the workers were off the roof and the opportunity passed.
I now wish that my State had a notification app like that operating in New South Wales. I would have taken some photos and notified the occupational health and safety (OHS) regulator. The “Speak Up, Save Lives” app seems good, but it may also undercut the pathways to Consultation established through the OHS laws.
On the afternoon of May 8 2020 the Prime Minister, Scott Morrison, and Chief Medical Officer, Brendan Murphy, revealed the decisions of the National Cabinet. This is a national plan developed with the agreement of State Premiers and Chief Ministers who will be largely responsible for how this plan is implemented in their local jurisdictions. Many of the occupational health and safety (OHS) challenges have been anticipated by business owners as discussed in this morning’s blog article but it is worth looking at the infographics of the plan revealed by Morrison and Murphy but also the transcript of the press conference as that provides an important context to what the government expects to happen.
The government released two infographics, one was four pages of the broad plan, the other is that plan split into industry sectors.
The discussions about occupational health and safety (OHS) and its relevance to COVID19 has finally touched the mainstream media with an article in The Age newspaper on May 7, 2020. The article is largely a reiteration of statements made by the Australian Council of Trade Unions (ACTU) and the Minister for Industrial Relations over the last few days but it is the first time that Safe Work Australia (SWA) has joined in.
The Chair of Safe Work Australia, Diane Smith-Gander has stated that additional regulations may have unintended consequences. She is quoted saying:
“We’ve got to let that system operate,… If we try to over-regulate and over-legislate, we will have unintended consequences for sure.”
It has been assumed that Australian businesses that have continued to operate during the COVID19 pandemic have been maintaining their occupational health and safety (OHS) audits and assessment; and that the safety regulators have been inspecting workplaces. On May 6 2020, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) released the findings of
“…a series of remote COVID-19 specific inspections, confirming operators of offshore facilities are equipped with adequate arrangements for protecting workers from infectious diseases such as COVID-19.”
The findings are interesting but perhaps of more interest is the questions that were asked and how the answers were verified.
Less than 12 hours after not mentioning Safe Work Australia’s COVID19 occupational health and safety (OHS) guidance, the Minister for Employment, Skills, Small and Family Business, Michaelia Cash, issues a media release, in conjunction with the Minister for Industrial Relations, Christian Porter, saying that
“The Safe Work Australia (SWA) website has been transformed into a centralised information hub, which can be easily searched using a handy content filter to find work health and safety guidance relevant to 23 specific industries.”