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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-10-27 Daily Xml
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OCCUPATIONAL HEALTH, SAFETY AND WELFARE (INDUSTRIAL MANSLAUGHTER) AMENDMENT BILL

Introduction and First Reading

The Hon. T.A. FRANKS (17:31): Obtained leave and introduced a bill for an act to amend the Occupational Health, Safety and Welfare Act 1986. Read a first time.

Second Reading

The Hon. T.A. FRANKS (17:32): I move:

That this bill be now read a second time.

This bill is a long overdue measure, and it seeks to capture the minority—and I do say the minority—of employers who cruelly put workers through unnecessary risk. The intentions and the implications of this bill will in fact apply only in the event that an employee tragically dies. Putting people's lives at risk on site for the sake of cost cutting or other reasons is unacceptable, and the statistics speak for themselves. On average, one person every three days dies in our country from a work-related incident. Last financial year, to my count, five of those work-related deaths occurred here in South Australia.

For every death, of course, there are many more who lose part of their lives: their children, who live a life without a father and mother; the wife or husband struggling to keep a shattered family together; the parents trying to come to terms with having to bury a child; and brothers, sisters, grandparents, uncles, aunts, cousins and also, of course, friends and colleagues, who battle to understand a needless death. There are scores of workmates who witnessed these tragic deaths, and also we should not forget the emergency services personnel who attend these often horrific workplace incidents.

Companies must, and can, continue to do all that they reasonably can to prevent workplace injuries. This bill will help to ensure that culpable employers are held responsible for workers' deaths. If they do not take responsibility, then they will be aware that a stick will apply. The penalties would be high, with up to 20 years' imprisonment or up to $1 million in fines. This bill introduces important reforms to increase safety in our workplaces in South Australia and includes a principle of corporate criminal responsibility.

The primary issue that this bill seeks to address is to ensure that culpable employers are held responsible for workers' deaths and that responsibility is something that they will take seriously. Every single workplace death is a tragedy and results in a lifetime legacy of tragedy for those who are left behind.

Under our existing laws, when an employer is responsible for an employee's death, the penalties they currently face, I believe, and the Greens believe, are woefully inadequate. This is a serious and real problem but, sadly, the seriousness of this is not reflected in our current legislative framework. This is unacceptable. I note that my Greens colleague Alison Xamon MLC (and she is very honourable) has moved a similar bill in Western Australia based on Safe Work Australia's model work, health and safety legislation. This model law, of course, came out of the national review of occupational health and safety and intergovernmental agreement to harmonise work, health and safety laws across Australia.

If an employer is reckless or negligent about exposing workers to serious risks to their safety and an employee dies as a consequence, this should be recognised as a criminal offence. The offence, of course, now exists in other jurisdictions in our own country, such as the Australian Capital Territory; and, of course, members may be aware that there now exists a corporate manslaughter law (although with a different framework to that before us in this bill) in the United Kingdom. As legislators, it is beholden on us to ensure that there is a genuine incentive for employers to ensure that they provide safe workplaces and, of course, we provide many carrots. This is Safe Work Week, and we do reward those great, wonderful, safe workplaces, and that is as it should be. However, as I say, this measure would be a stick.

It should be more cost effective to ensure that your employees return home from work safe, sound, in one piece and alive than to risk facing a minimal or, in fact, non-punitive fine for that employee not returning home from work that day. The bill, of course, increases the penalties that we currently have when a worker dies in a workplace.

Those employers engaging in best practice will experience no additional financial, administrative or legal burdens. Indeed, this bill seeks to capture only that minority of employers that are either indifferent or careless or, at worst, callous towards the safety and lives of their employees. It will provide a further incentive to ensure workers' safety. Industrial manslaughter being seen as an offence with a significant penalty is a long-overdue move for this state. It will capture only the worst of employers and, even then, only in the tragic event of an employee's death.

As I say, the bill will create an offence where an employer breaches their duty of care, or knows or is recklessly indifferent or creates a substantial risk of serious harm to a person and that breach causes a person's death. That is the only time that this penalty will apply. The penalty is imprisonment of up to 20 years if that person is a natural person, or a fine of up to $1 million may be applied. I believe this is a fitting penalty. It will not bring a single person back from death but it will go a long way towards showing that we are serious when we and workplaces say, 'Home safe every day.'

I thank the people who work on this issue day in and day out. They include: VOID (Voices Of Industrial Death), who would be familiar to many members of this house, and Andrea Madeley, in particular; the officers, of course, of SafeWork SA and of the many unions around our state; people such as Andy Alcock, who is well known to many members here but particularly to the Greens; and the SA unions—our local heroes who defend workers' rights day in, day out.

I also note that Senator Nick Xenophon has previously moved a bill to introduce the offence of industrial manslaughter in this place, although that was quite a different bill from this measure. I commend the Hon. Alison Xamon for the great consultation that went into producing her bill, which I looked to in terms of producing this bill.

I would like to think that the families of those who lose a loved one, have lost a loved one or who may lose a loved one in future because they went to work one day, will be comforted that this chamber took this issue so seriously as to prioritise debating this issue and ensuring that, if we do not move to implementing this offence into our state regime, we are certainly working for it at a national level as well. I commend the bill to the chamber.

Debate adjourned on motion of the Hon. J.M. Gazzola.

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