Last year, Victoria's Premier Daniel Andrews made an election promise that would see Victoria join Queensland and the ACT in enacting industrial manslaughter legislation if his Labor government was re-elected.
Now they’ve secured the vote, we’re looking at that legislation under the microscope to what this legislation actually entails.
Andrews’ move to introduce industrial manslaughter legislation in Victoria is aimed at targeting companies that are responsible for the deaths of employees, and move punitive measures from civil, financial punishments to criminal offences; with up to twenty-years imprisonment of those found to be in violation.
He said at the time of the announcement “It’s my sincerest hope that these laws will never need to be used… that instead, they’ll change our workplaces and our culture.”
So, let’s take a quick glance at the historical context of this legislation being implemented across Australia, and get insight from those in the know whether or not they'll have the desired outcome of deterring future workplace deaths.
Industrial or workplace manslaughter bills have been doing the rounds in state and territorial parliaments for a number of years now- but until 2018, the ACT and more recently Queensland have been the sole two states and territories to enact the legislation. The ACT was the first territory off the mark, introducing the criminal industrial manslaughter offence in 2004. If we’re to look at it under a microscope, as pointed out by Professor Rick Sarre, “significantly, the ACT law says prosecutors do not have to prove negligence by an act or an omission."
"They could simply show that a corporate culture existed within the employer corporation that directed, encouraged, tolerated or led to noncompliance with the law, whereupon the fatal event occurred”, meaning the focal point of the legislation could be construed as a broad stroke of the brush.
“Unions are happy, while enterprise[s] are sceptical. In some instances, [they’ve] threatened to move operations off-shore.” Professor Rick Sarre, adjunct Professor of law and criminal justice at the University of South Australia and author of a number of academic papers including “Death in the Workplace” - which can be accessed here - told Best Practice via email.
'The threat by enterprise to move operations out of Australia could be the result of fines in excess of $10-20 million, as well as up to 20-years jail time for executives found to be guilty.'
Moving to Queensland, last year we saw the introduction of their industrial manslaughter laws. The move from the state could be seen as a response to the deaths of patrons at the Gold Coast’s ‘Dreamworld’ theme-park, and Eagle Farm racecourse. In the case of the latter, Claudio D’Alessandro, 58, was charged with two counts of manslaughter following the death of two workers, Ashley Pengana Morris and Humberto Ferraira Leite.
Professor Sarre has argued in the past that the introduced manslaughter laws are “unlikely to save lives in the workplace”, rather, they’re directed at “looking to satisfy victim’s rights politically rather than any hard evidence that workplaces are safer.”
“There has been a preparedness of some prosecutorial authorities, in the last decade, to charge corporations with manslaughter, although the success rate is very poor” Professor Sarre has written.
“In any event, it is all happening after the death or injury at which point, it’s too late.”
However, this could change if governments are to become more litigious in nature, emboldened by the passage of this legislation. According to Alena Titterton, a partner in Clyde & Co’s regulation and investigation practice who spoke with the SIA, “while we can debate the merit of industrial manslaughter offences, it seems that the tide is in their favour and organisations need to be ready for them,” referring to a possible need for enterprise to allocate resources pre-emptively seeking legal advice.
It seems inevitable, according to Titterton, that organisations big and small “may need to consider establishing a panel of different law firms to be immediately available to represent various different interests in the event of a fatal workplace incident.”
Professor Sarre remains sceptical in regard to the government’s focus in allocating money and resources into the prosecution after and incident, rather than implementing further industry-wide regulations before an accident. “If the amount of money that has gone into this legislation - or will be spent on any possible prosecutions – were to be injected into prevention methods, education, safety training, industry awards etc., it will have been better spent.”
“In the absence of a jailing of a CEO, where’s the deterrence?” he asks.
One of the major criticisms of the laws Professor Sarre has aired previously is that “Queensland’s laws don’t apply to the mining sector (where one might assume a high risk of injury exists), nor do they apply to any person other than an employee, which is a little odd, given Dreamworld victims were visitors.” It would be reasonable to assume that in this context, at least, the legislation is lacking in direction, and would act to punish some businesses, and not others.
More recently, WA branch secretary of the Maritime Union of Australia Christy Cain offered up some harsh words on the legislation that passed a Labor resolution calling for its introduction.
“Kill a worker: go to jail.” He said.
“All workers in Australia deserve to know that there are consequences to negligent and reckless conduct which may lead – or tragically does lead – to a death… Strong industrial manslaughter laws and penalties which act as a real deterrent are an essential element of providing safer workplaces.” Cain said.
In response, jobs minister Kelly O’Dwyer accused Labor of “hiding the secret deal they have struck with the union movement” regarding possible lobbying efforts of industrial manslaughter legislation, and further matters, warning that the move could represent “a recipe for industrial conflict and chaos not seen since the 1970s, when industrial action was over 40-times higher than today.”
One of the key problems here, according to Sarre is that “there is little evidence that threatening managers with greater prison sentences than those found under existing health and safety legislation is going to change behaviours and eliminate dangerous practices.”
A commonly waged argument is that in the pursuit of safer workplaces across Australia, resources could be more effectively allocated to implement effective preventative mechanisms.
“A low bow to draw”.
As Professor Sarre concludes: “certainly one can argue that the foreshadowed Andrews legislation will have an important symbolic effect. But it is a long bow to draw to say that simply having an industrial manslaughter offence on the statute books in Victoria will by itself lower workplace death rates.”
Wrapping all this up, as is a common occurrence when dealing with politics, there's some vagueness and ambiguity to sort through, both in terms of what concrete policy we'll see materialise, and how effective the proposed legislation will be in curbing rates of workplace accidents.