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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2016-11-02 Daily Xml
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Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation: Referral of the Work Health and Safety (Industrial Manslaughter) Amendment Bill

The Hon. S.W. KEY (Ashford) (11:40): I move:

That the 25th report of the committee, entitled Report into the Referral of the Work Health and Safety (Industrial Manslaughter) Amendment Bill, be noted.

The committee's 25th report is the result of an inquiry undertaken in response to a referral of the Work Health and Safety (Industrial Manslaughter) Amendment Bill to the committee by the Legislative Council. The purpose of the bill, which was introduced by the Hon. Tammy Franks MLC from the other place, was to provide stronger penalties for employers and corporations whose negligent work practices result in work-related fatalities.

Work-related fatalities are unacceptable and not only end the life of an innocent worker but also have far-reaching consequences for the family, friends, other workers and those close to the deceased. While one workplace fatality is one too many, there has been, I am pleased to say, a continued downward trend in workplace incidents, injuries and fatalities which, our committee argues, are the responsibility of everyone to prevent.

In the past 12 years, there have been three previous attempts to introduce a similar bill to prosecute individual employers who recklessly disregard the health and safety of their workers and where that disregard has resulted in the death of a worker. The committee heard from a number of sources that there were legal difficulties with holding employers accountable for a workplace death, particularly if the organisation is large and complex. Many levels of management accountability often make it difficult to identify the directing mind of the organisation when decision-making is diffused through the organisation.

I have to say that I was certainly involved as the shadow industrial relations minister, when first coming into the parliament, in trying to introduce such legislation, so my history goes back some 19 years. I have to report that we have been stunningly unsuccessful in making those changes, but the good news is that the work that has been done with regard to the harmonisation bill, the introduction of the Work Health and Safety Act, really has changed the relationship between workers and businesses. Workers are now engaged in many different arrangements—I think they were before, but they are certainly more prevalent now—such as being on contract through labour hire organisations as subcontractors and, sadly in many ways, in my view, there has been an increasing casualisation of the workforce.

The language of the Work Health and Safety Act no longer refers to employers and employees. We refer to a 'person conducting a business or undertaking' (PCBU). These people have a duty of care and officers have responsibilities to any worker on the worksite regardless of the employment relationship. This change reflects the complex arrangements at large worksites, particularly construction sites. On these sites, it is possible for an employer to take every reasonable measure to protect the health and safety of workers but for a contractor or someone else to enter the site and create an unsafe situation.

I reflect on a site that has had an awful record—the new Royal Adelaide Hospital. A site like the new Royal Adelaide Hospital has many contractors, subcontractors and others working on site with different employment relationships. One can easily imagine a builder erecting a barrier around a void on a construction site only to have it removed by a contractor to gain access to the site for different reasons.

An inexperienced worker who falls through the void and is killed does not do so because the employer is negligent but because of the negligence of a third party. In this scenario, the Work Health and Safety Act places the obligation on the contractor who had the duty of care for all those who were working on the site, the 'person conducting a business or undertaking'. An investigation would reveal who had the duty and how the failure had occurred, but under the Work Health and Safety (Industrial Manslaughter) Amendment Bill it would be difficult to prosecute the guilty party if they were not the employer.

It was also brought to our attention that the bill may prevent prosecution of any person who aided or abetted a work-related death. Submissions to the inquiry from legal and policy interest groups, including the Law Society, the Director of Public Prosecutions and the Flinders University Centre for Crime Policy and Research, all raised concerns about conflicting language, definitions and other aspects of the proposed bill compared with the Criminal Law Consolidation Act and the Work Health and Safety Act.

A major difficulty with the bill is that it focuses on the employer and employee relationship, rather than on the more complex work arrangements in place on many large industrial sites, where contractors, labour hire personnel and subcontractors work from time to time often under very differing and complex supervision arrangements. The bill also attempts to adopt some aspects of the Australian Capital Territory Criminal Code, as well as Britain's Corporate Manslaughter and Corporate Homicide Act, which did not align with the Work Health and Safety Act. I must say that in the past one of the references I have used is, in fact, the British Corporate Manslaughter and Corporate Homicide Act, but I think we need to recognise that things have moved on with the Work Health and Safety Act.

Employers voiced a common view that it is better to prevent fatalities than to prosecute individuals after the death of a worker. There is also a common view that increased penalties in the Work Health and Safety Act, particularly the category 1 offence, which has a maximum penalty of $3 million for corporations and up to $600,000 and/or five years in prison for officers who expose a person to a risk of death or serious injury or illness, are a significant penalty improvement on the former Occupational Health, Safety and Welfare Act.

The Work Health and Safety Act does not wait for a fatality to occur before a prosecution can take place. It is the risk exposure that will be prosecuted, which is aimed at prevention of work-related fatalities. On a personal level, I have some concerns with relying just on the Work Health and Safety Act, but I think it is important that, as the Presiding Member, I reflect the view of the whole committee.

The committee noted that currently it is possible to prosecute an employer and any other individual for manslaughter under the Criminal Law Consolidation Act, as has occurred (and time has moved on since we started this inquiry) in the case of Colbert, when the employer showed reckless disregard for his employees by not maintaining the brakes on a truck, which ultimately resulted in the death of an innocent man, leaving a distraught family without a husband and father. Many fellow workers and friends are very upset about this terrible death.

The committee recommends that the Crown Solicitor and the Director of Public Prosecutions consider a protocol to ensure that due consideration is given to prosecuting a manslaughter charge in the case of a work-related fatality where it is appropriate to do so. The committee recommends that this should not prevent the Crown Solicitor from also prosecuting a corporation under the Work Health and Safety Act. Based on the evidence presented to the committee, members maintain that there are adequate legal systems in place to deal with industrial death arising from negligent disregard. On this basis, the committee does not support the proposed amendment to the Work Health and Safety Act.

I would like to thank all those who made submissions and gave evidence to the committee. My thanks also goes to the hardworking committee members: the member for Fisher and the member for Schubert, as well as the Hon. Gerry Kandelaars, the Hon. John Darley and the Hon. John Dawkins from the other place. I really do appreciate the fact that we do work together on very difficult references that we seem to get regularly from the Legislative Council, but also on the work that we have generated. My thanks go, in particular, to the committee's executive officer, Sue Sedivy.

Mr KNOLL (Schubert) (11:50): In the previous speech, I talked about the collegiality of this committee when dealing with difficult issues, and this is one of the main things I was thinking of. The issue of industrial manslaughter was given to us, and it is an extremely delicate issue.

First off, I want to say that all deaths in workplaces should, to the greatest extent they can, be avoided. I do not think we can get to a situation where we are able to prevent these things completely, because sometimes freak accidents do happen—and we see this on our roads—but we should always be striving to reduce them as much as we can. Our target should be zero; unfortunately, I am not sure that we are going to get there.

The distress that a workplace death causes to those at that workplace but also to the families and friends must be immense; it is a tragedy I cannot fully comprehend, not having dealt with it—although, interestingly, in my previous life I talked to a number of workers who have dealt with it at previous workplaces. It is hugely tragic, and when this referral was sent to us we wanted to deal with the topic in a very respectful but thorough manner to, as I said previously, try to find the truth.

I think the reason we, as a committee, ended up not supporting this bill is because in the end what it sought to try to achieve and what it would have achieved were two separate things. Essentially, the bill itself would not work as the proponents would have intended. The member for Ashford talked about the fact that trying to prosecute an employer for an industrial death is, potentially, not the best way to go about it and that, in fact, in the case of this bill it is extremely limiting.

One of the reasons that industrial manslaughter—and, again, the member for Ashford talked about how many times the parliament has dealt with this over a long period of time—the reason that the legislation has moved on, is because of the improvements made under the Work Health and Safety Act 2012 where there was this new idea of a 'person conducting a business or undertaking' (a PCBU). It is an extremely awkward phrase but one that is much more comprehensive and encompassing in understanding the variety of employee-employer relationships or commercial relationships that exist across South Australian worksites.

An example often brought up is the construction industry, where we have a series of head contractors and subcontractors and it is essentially impossible to understand who is an employer versus a subcontractor. The fact is that the duty of care should exist at all stages of those commercial relationships, and essentially the PCBU definition is designed to be able to capture all those. The PCBU is also designed to capture a workplace that has an employer and employees, to make sure that everybody has a stake in safety in the workplace.

Again, I think this industrial manslaughter bill focuses too much on the employer, the ultimate employer, as opposed to the person who has the power to be able to make the change. That is often the employer, but take, for instance, a company that employs 100 people across a variety of different worksites. The ultimate employer—the chief executive or the owner of the company—is only able to be at one site at one time. The company has to have a structure, and that is the responsibility of the employer, to be able to ensure safety across the sites; however, there are responsibilities that site supervisors or managers have, and those responsibilities also need to be taken into account.

An interesting thing we found out, and where the inquiry headed, was the fact that manslaughter is an option; in common law manslaughter is very much an option on the table for where industrial deaths occur. The common law definition of manslaughter can be used as a charge against the person ultimately responsible for having caused that industrial death.

Interestingly, the Colbert case is one that ebbed and flowed over the course of our inquiry. Initially, Colbert was found guilty. The decision to have an appeal was granted based on some technical issues around how the evidence was presented but, once it did go to appeal, it was very quickly upheld because the fundamental nature of the case proved that Colbert was indeed guilty of manslaughter. So manslaughter can be used.

Common law manslaughter is there, so really where our inquiry headed was to look at why common law manslaughter is not used more often when it comes to dealing with workplace death. Essentially, as close as we can get, and this is certainly where our recommendations head, is the fact that where SafeWork SA goes to investigate on a worksite an industrial death, they are likely to talk then to the Crown Solicitor and SafeWork develops a brief and talks to the Crown Solicitor about the most appropriate charge.

Certainly in the case of a workplace death, if there is some form of breach of the Work Health and Safety Act, then they can pursue a category 1 offence under the act which carries a prison term of up to five years and a varying scale—I think it is up to a $2 million fine for a category 1 offence for corporations. Essentially, that is a path that they follow.

Interestingly, in the Colbert case, because it was a road fatality police were first on the scene, and potentially, because the police had developed a brief and sent that to the DPP, they may have had a different view when looking at the ability to charge under criminal law as opposed to the majority of the Work Health and Safety Act, which is civil, except in the case of some category 1 offences that do get treated as criminal cases.

Essentially, where we got to was that SafeWork SA, the police, the Crown Solicitor's Office and the DPP all need to work together to ensure that, where there is evidence to support a higher level charge of common law manslaughter, that it is pursued and that, even though it may be easier to prosecute under the Work Health and Safety Act, if the evidence suggests that a prosecution is viable the higher charge of common law manslaughter is pursued because we have shown through Colbert that it is available. All parties need to be aware that they should pursue the highest and most serious charge where there is evidence to support that.

In closing, I would like to thank the committee for their honest and considered deliberation and for the fact that we were able to take evidence from adversarial sides and coalesce that evidence to try to find the truth and try to find where the right of the argument lay, with the understanding that our committee always has to look at what is in the best interests of improving safety outcomes on worksites across South Australia and also make sure, to the greatest extent that our committee can, that people who go to work in the morning come home happy, healthy and safe at the end of the day.

Thank you very much to the committee. I think we have reached a fairly final conclusion on this issue. To those who are proponents of this bill, can I say that it is not that we do not want employers to be responsible for their actions and the responsibilities that they have to their employees: it is that the model legislation, the work health and safety legislation, that we have in place does adequately deal with these things. Common law manslaughter is available and on the table and we merely need to ensure that, to the greatest extent possible, the legislation is used to its full extent.

Motion carried.

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