Following the tragic death of Gold Coast construction workers Chris Gear and Steve Sayer after a scaffold on which they were working malfunctioned and plummeted 26 storeys to the ground in 2008, the Queensland division of the nation’s biggest building union had had enough.
In the lead-up to hearings against the building outfit Karimbla Construction Services last year, the Construction, Forestry, Mining and Energy Union called on the Queensland government to introduce new charges for industrial manslaughter charges for industrial manslaughter, saying that existing laws and punishments in that state provided a ‘pitiful slap on the wrist.’ In the case in question, Karimbla was fined $25,000, after it was found that there were gaps in its oversight and supervision with regard to swing stages of the scaffolding.
Such calls are not new. Indeed, in the Australian Capital Territory, a senior officer of a company whose reckless or negligent conduct results in the death of a worker has in fact been guilty of an industrial manslaughter offense and subject to up to 20 years' jail time since 2003 – although the federal government subsequently exempted all Commonwealth employees from this.
Now, the Greens are pushing for similar charges in South Australia, and have introduced legislation which would create an industrial manslaughter charge with fines of up to $1 million or jail time of up to 20 years - up from maximum penalties of $600,000 (for company directors and officers) or five years’ imprisonment for company officers for existing breaches of work, health and safety law.
Will this make workplaces safer? On the face of it, the figures suggest that it will. Across most states, maximum penalties for company officers with regard to serious breaches of occupational health and safety laws sit at $600,000 in fines or five years’ imprisonment. The notable exceptions are the ACT and Western Australia, where maximum fines are actually lower and there is no imprisonment for a first offence. Victoria also has lower fines but similar imprisonment times to other states.
According to Safe Work Australia data, fatality rates per thousand workers are consistently below national averages in the ACT and have come in at higher than national averages in Western Australia for six of the past eight years for which figures are available (up until 2013/14). All else being equal, this would tend to suggest that tougher penalties in the ACT had led to safer workplaces there whereas lighter penalties in WA were having the opposite effect. Increasing maximum penalties, this would suggest, would help lead to fewer accidents and deaths.
Nevertheless, these figures would almost certainly be skewed by the public sector (and low risk) nature of employment in the ACT along with the proportionate high exposure of the WA economy to high risk sectors such as mining. Accordingly, drawing any conclusive evidence from this data is difficult.
Regarding the merits of the South Australian bill, meanwhile, views from safety experts are mixed. Shane Connelly, chief executive officer of Keep It Simple Safety, welcomes the legislation, which he says would not impact companies who did the right thing but would send an important message to the minority of reckless outfits.
“My principle is that if you can’t run a company safely then you shouldn’t be running a company full stop,” Connelly said. “With that in mind, if that’s one of your principles, then as a company you should never be afraid of being charged with manslaughter.
“Unfortunately, there are a very small percentage of companies out there that are literally dangerous for everyone who works for them. I think you need to be able to set that benchmark and say this is not something that we will tolerate in the country.
“I think that’s really what (the Greens’ bill) says…I think it makes a statement that says that this (reckless behaviour) is something that we will not tolerate.”
Systems on a Shoestring chief executive officer Emma Bentton disagrees. Increasing the length of possible jail time, Bentton says, is not likely to have a significant impact upon safety practices as prison sentences are available in most states under existing law but rarely handed out. Indeed, Bentton says, doing so may indeed be counter-productive as it would discourage smart people from taking up directorships of companies.
A better way, she says, is through approaches which have been adopted across several states, including New South Wales, where employers are required to demonstrate that they followed due diligence in order to avoid prosecution.
Safety Institute of Australia managing director David Clarke, meanwhile, suggests that the focus should revolve not so much around punishment but more so around proactive measures to stop accidents from occurring. Speaking particularly about the situation in South Australia, Clarke said a better way to strengthen regulatory efforts would be to beef up the resources of SafeWork SA to enable the organisation to expand monitoring and compliance efforts.
As for penalties and punishment, Clarke acknowledges that they have a place but says they are a matter for the community to decide at a social level and not one on which the Institute was able to comment.
Employer groups, meanwhile, have specific objections to the South Australian bill. Punishment and penalties should be determined based on the specific conduct in question and the level of risk involved as opposed to the outcome, groups such as Australian Industry Group and the Civil Contractors Federation suggest. Introducing a penalty which applies only where there is a fatality but not when similar types of conduct instead results in serious injury or (best case outcome) lucky escape moves away from this idea, they argue.
For years, unions have been calling for industrial manslaughter to be introduced.
With the Greens’ moves in South Australia, debate surrounding whether or not reckless behaviour which leads to workplace fatalities should meet 20-year imprisonment terms is on.