Work Health and Safety (Industrial Manslaughter) Amendment Bill

WORK HEALTH AND SAFETY (INDUSTRIAL MANSLAUGHTER) AMENDMENT BILL

Introduction and First Reading

The Hon. T.A. FRANKS (16:00): Obtained leave and introduced a bill for an act to amend the Work Health and Safety Act 2012. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:01): I move:

That this bill be now read a second time.

Every year, on 28 April, we mark International Workers Memorial Day. Every year, a memorial service is held to remember those who have died in their workplace and to mourn with their family and friends. Those family and friends who have suffered immensely because of the tragic death of those family members. Every year, we see the statistics of workplace fatality and workplace injuries rising and increasing in terms of overall number, and every year there is a push to strengthen our workplace laws to ensure that workplace safety is prioritised to reduce the number of workplace fatalities.

We need safer workplaces, and we are working towards safer workplaces.

 

We need a pledge from governments across our nation and across the world to put their efforts and to redouble their efforts into ensuring that every worker who goes to work comes back home to their loved ones uninjured and alive.

The SafeWork South Australia figures show that in our state we have already had four recorded workplace fatalities this calendar year alone, and we are only at the start of the month of May. It is a scary thing to know that four workers have already lost their life in this state this year. That is four sets of families, four circles of friends, and the many in the community who have been touched by those deaths. Of course, we need to look at what is causing those fatalities, and we also need to investigate what we can do to stop them.

 

When I talk about these statistics, I am, of course, talking about the number of families affected by workplace fatalities, and here in South Australia there were 12 notifiable work-related fatalities recorded in the period 1 July 2010 to 30 June 2011. SafeWork SA's website indicates that in the year 2011-12 there were 10 workplace deaths; in 2012-13, there were 19 workplace fatalities; and in 2013-14 there were 14 such fatalities. These SafeWork Australia figures show that 185 workers were killed at work in 2014; that is one death every two days. The work-related death toll is even higher, with 233 work-related deaths in 2014. Furthermore, according to the Australian Council of Trade Unions, 7,000 Australians die every year from occupational diseases.

Clearly, there is an argument that we need safer workplaces and that we need to strengthen workplace laws. We need to set the highest bar for deterrence so that employers take seriously the work health and safety of their employees. I know that the majority of employers already do the right thing and that they follow occupational health and safety procedures, but we do know that we do have a small minority who do not.

 

I rise today to introduce this industrial manslaughter bill, which seeks to introduce important reforms to improve the safety of workplaces in our state through the principle of corporate criminal responsibility.

The primary objective of this bill is to ensure that culpable employers are held responsible for their actions. This bill seeks to introduce industrial manslaughter. The offence covers the situation where an individual or corporation's conduct causes the death of a worker, where that individual or corporation's recklessness or negligence caused serious harm and, obviously, death to that worker. Within the bill an employer is guilty of an offence if:

? the employer breaches their duty of care;

? the employer knew or was recklessly indifferent that the act or omission constituting the breach would create a substantial risk of serious harm to a person; and

? the breach causes the death of a person.

 

As I said earlier, this bill seeks to capture an absolutely tiny minority of employers who expose workers to unnecessary risk of harm. This bill will apply only where a worker dies as a result of the actions or omissions of that employer.

 

As the current statistics show, we still have an unacceptable and high number of workers who die every year at work. This has far-reaching implications not only on those workers' families but of course on all who are left behind, particularly their children, who must survive without a parent, or their spouse or partner, who must keep a shattered family together, or that person's parents, who have to come to terms with that death and face the emotional turmoil of burying their child. It has implications, of course, on sisters, brothers, grandparents, cousins, friends and, indeed, co-workers and communities, especially those workers who witness or discover these tragic deaths, as well as emergency workers and those who attend the scene of these often horrendous workplace incidents.

Companies, industry sector and employers must do everything they reasonably can to prevent workplace injuries and deaths. This bill seeks to ensure that culpable employers are held responsible for workers' deaths at work. If they act recklessly or negligently, if they do not take responsibility for the safety of their workers, penalties will apply. The penalties in this bill I believe are high, but I note that they are not the highest in our land. The penalties suggested in this bill are up to 20 years' imprisonment for individuals or fines of up to $1 million.

 

Members may be aware that I previously introduced a similar bill in 2010 and I also moved a similar amendment when we debated the work health and safety legislation, the harmonised legislation, in 2012. I move this bill again this year in order to invite other members of this chamber and, indeed, across the parliament, to work collaboratively on this piece of legislation. I know that traditionally the Liberal Party has held strong views on this topic, and I invite them to also contribute their thoughts on this particular law reform, and I encourage members of the government and the crossbenches to actively participate in the debate.

 

I note that Senator Nick Xenophon, who was previously a member of this chamber, moved a very similar bill to the one that I introduced today and he also moved to introduce the offence of industrial manslaughter in this place. I also commend the Hon. Alison Xamon, former Greens MLC in WA, for her extensive consultation in producing a similar bill in that state.

 

My intention in introducing this bill today is to see it referred to the Parliamentary Occupational Safety, Rehabilitation and Compensation Committee for exploration and examination to ensure that the community of South Australia can have its voice heard on this issue and hopefully come to a position where, across the party divide, we can work to a consensus position that we bring back to this chamber.

 

I would like to talk about the maximum penalty as currently drafted in this bill. As I noted briefly before, my office has given much consideration to the appropriate maximum financial penalty—and I note that this bill does not contain the highest of penalties. I am certainly open to stronger penalties should the parliamentary committee, through its inquiry, recommend that but I would say that this would be a minimum amount. The Work Health and Safety Act 2012, for example, provides in section 31 for a maximum penalty of $3 million for reckless conduct by a body corporate which exposes a worker to risk of death, serious injury or illness, rather than actual death.

 

My office had originally thought of imposing a maximum penalty of $5 million as per the ACT's industrial manslaughter Bill. However, we believe it would be appropriate for the committee to examine that maximum penalty and also ensure that communities, stakeholders and families have their voices heard on what not only the financial penalty but also the sentence might be. A price, of course, can never be placed on a life, and this law is chiefly about deterring that tiny minority of employers from cutting corners and putting their employees at risk, and so the Greens believe it is now time for this committee to have that discussion.

 

We hope that next year on International Workers Memorial Day we do not see new faces in the church when we come to have that service. Unfortunately, the reality is that we probably will, but I would hope that legislation like this would be in place within this next year to ensure that, where it does, justice is served and the strongest tools at our disposal are there to dissuade reckless behaviour on the behalf of employers.

 

The main goal of this bill is to ensure that culpable employers are held responsible for workers' deaths and to ensure that all employers are taking their duty of care to their employees seriously. Every single workplace death is significant. Each one is a tragedy that will affect the lives of many others forever. If an employer is negligent or recklessly indifferent to exposing workers to serious risk to their safety, and a worker dies as a consequence, this should be recognised by our law as a criminal offence. Such an offence already exists in other jurisdictions, such as the United Kingdom.

 

As legislators, it is our responsibility to ensure that employers have a genuine incentive to provide a safe workplace. We have many carrots in our system, but we do need a few sticks. The measure proposed in this bill would indeed be a stick. I would note that, by a sentence being able to be applied, then those who seek to insure themselves out of culpability would not be in a position to simply insure themselves out of their financial liabilities, but that a potential prison sentence would be that very big stick.

 

Of course, it is more beneficial generally and more cost effective for an employer to have their workers arrive home safely rather than to have to pay out potential fines as a result of a serious breach of their duty of care. This bill will capture only those employers who are indifferent, careless or callous towards the safety of their workers. The offence of industrial manslaughter captures only the worst employers and even then only in the tragic event of a worker's death.

 

I would like to thank the families of those who have contributed to this bill, those who have spoken to me who have lost a loved one, or who work to advocate for those who have lost loved ones. Voice of Industrial Death and the CFMEU certainly stood by me and launched a call for this bill last week. I know it has been a long-held union campaign to see industrial manslaughter created as a recognised crime, and I look forward to working with many across the union sector, those in the labour movement, those in the Labor Party and those on the crossbench and the opposition benches, so that next year we actually have legislation in line with that which exists in the United Kingdom, that provides that great disincentive for behaviours where we see a worker needlessly lose their life. With that, I commend the bill to the council.

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