Making a killing
Now this is a turn-up for the books:
Employer groups have come out against the idea of industrial manslaughter legislation.
I would never have seen that coming. Their criticism seems wide of the mark, though:
Industrial Relations Minister John Della Bosca says he is looking at strengthening the Occupational Health and Safety Act to allow for tougher penalties, such as jail sentences, to be imposed for breaches that result in a death.
Gary Brack from Employers First says the current OH&S laws are already extremely tough and allow for employers to be prosecuted.
“There’s a 91 per cent success rate in prosecutions in this state, 75 per cent in the UK, so it is quite obvious that we’ve already got a tough law here that is very difficult to mount a reasonable defence against,” he said.
If there’s a high success rate of prosecutions, then we know the bosses are breaking the law — and they’re not changing their behaviour.
Why not? Because the punishments are piss-weak:
According to the Crown Advocate, the [NSW] state government’s senior criminal law barrister, 75 per cent of workplace deaths have attracted penalties of less than 20 per cent of the statutory minimum.
People are dying so that companies can boost their profits. The introduction of industrial manslaughter laws with stiff penalties — including jail — appears to be needed.
There is also a 100% correlation between winning the lottery and owning a ticket, but that doesn’t mean there are lots of winners.
Workcover in SA has a lovely motto that ALL workplce accidents are preventable. Of course these nit-wits don’t work in engineering, forestry, mining, construction or transport. They have no first-aid kits on their premises, because of course they have totally abolished paper cuts, in their offices and all journey-to-work accidents, for which the CEO would be up for manslaughter if their were any.
The question that arises here is, are these well paid desk jockeys prepared to pay the cost of full scaffolding(erected and removed by licensed scaffolders) when they engage their local painter to paint their house, or their local handyman to fix a leaky roof? Will they be prepared to pay asbestos removal type costs, when the painter deals with old lead based paint and the list goes on. Will the employing householder be liable for manslaughter if a tradesperson falls off the roof, and he knew he was not using a regulation scaffold? Where does your concern for workers welfare begin and end ? God(and his disciple judges) forbid that it should be at the zipper on your wallet.
Yes, the fact that there is a 90% conviction rate says nothing about the frequency with which employers are breaking the law; it merely tells us that the DPP is doing a good job of figuring out which cases to prosecute.
The high number of deaths attracting much less than the statutory minimum penalty is actually evidence that most deaths are caused in circumstances where the court feels the employer is not particularly blameworthy; i.e. probably there is a greater degree of bad luck or employee negligence/recklessness and a lesser degree of employer negligence/recklessness involved.
The only statistics that would be useful to decide the validity of your argument are statistics on the increase/decrease in the annual number of fatalities as a proportion of the workforce.
The problem, Alan, is that there are no reliable statistics on the number of workplace deaths.
I accept your first point, that the DPP is weeding out the crap cases. In which case the consistently low penalties being awarded are staggering — we’re talking about the most serious cases, where the DPP thinks the employer is most clearly responsible, and yet three-quarters of those cases attract under 20% of the penalty, and nobody has received a penalty above 80% of the statutory fine?
There are several possible explanations for the figures; but since the unions haven’t come up with examples supporting Robert’s chosen interpretation, I’d suggest the best bet would seem to be that either it’s an incorrect guess on Robert’s part, or [if he's correct] then the union movement has shown a bizzre reluctance to publicise the evidence that would be readily available.
The point I was making was that no employer I know of, wants injured or dead workers. Even the uncaring face the punitive costs of the Workcover penalty system.
However there is the problem of treading the fine line of reasonable commercial risk at work. I was introduced to how indeterminate this line is when I was involved with the development of a machine some years ago. We consulted a DLI expert in the field of machinery guarding for advice, with a view to manufacture. The bottom line was he could not give a guarantee that our reasonable precautions would not see us in court if an injury occurred. That he said was really up to the interpretation and 20/20 hindsight of the judge on the day.
He commented here, that given the increasing propensity of the courts to penalise the manufacturer, that he wouldn’t fancy anyone trying to invent the lawn-mower, chain-saw or power saw in today’s court environment. He also said that it is hard to idiot proof such machinery and recounted recently how a worker injured his hand by trying to adjust a belt while a machine was running. Now the machine was guarded against forseeable operator contact, but the belt could be accessed deliberately from behind (the machine being up against the wall) This defect was rectified and the operator duly returned to work and subsequently lost 3 fingers on the same machine. He had lain down on the floor, on his back, to reach up into the machine belt to do this. When asked later why he did this after the previous injury and safety lecture, his answer was ‘to see if it was really safe.’
This experienced DLI inspector filled us with no end of confidence about manufacturers liability.
You’re right, Observa, it’s become an absurd minefield, made worse by lawyers and union bosses trying to block reform. I attended a seminar recently at which Justice Sheehan, a former State Labor Minister, spoke about his efforts to reform aspects of the problem here in NSW. Until Union leaders stop grandstanding, and support those Labor Governments which are making genuine efforts to legislate much needed workable reforms, the honest workers and honest employers will continue to suffer.