Can the law make workplaces safer?

Can changing the law make it safer to go to work or are there still too many accidents waiting to happen? Would a piece of legislation specifically targeting the workplace and making CEOs personally liable when it comes to work-related death make industry a safer place to work or is this a union-inspired witch-hunt? These are the questions being asked by many OH&S practitioners, safety and legal experts, as well as bosses, workers and their representative unions. And depending who you talk to, the potential value of industrial manslaughter legislation varies from being pivotal to utterly useless.

Consider the case of Bill Smith (not his real name). As the one-time operations manager of a well-known Melbourne-based confectionery manufacturer one of his responsibilities was safety throughout the factory - after all, with a large mostly unskilled workforce, he had to ensure that safety standards were not only maintained but also dramatically improved.

Unfortunately, he says, the management at this company believed safety was the responsibility of the worker and neglected to offer appropriate training or safeguards. "When injuries occurred, they would be recorded and the worker would either sent to a local GP (who relished the business) or, if the injury was serious or debilitating, the injured worker would be laid off or 'convinced' out of lodging a claim."

Smith had been with the company for just a few weeks and had lobbied hard for better OHS practices when he was called into the general manager's office and dismissed on the spot. The dismissal came just days after complying with a Worksafe directive to shut down an extremely dangerous part of the plant.

The machine guarding on this particular piece of equipment had been removed, electrical safety switches had been disconnected or overridden, workers were placing their arms (up to the shoulder) into the machinery while it was in operation and many other dangerous practices were taking place in this particular area.

The particular part of the plant was subsequently shut down and Worksafe provided a report of work to be carried out to "make safe" the equipment. For his part, Smith was severely reprimanded by the general manager for complying with the inspectors' directive to shut down. Another senior manager from the company remarked: "I reckon you'll last a week", and he claims they actually made bets on which date the axe would eventually fall on him. At this stage, Smith had been the eighth operations manager in just four years.

Topping off the situation, a manager senior to Smith called staff back to this plant after the Worksafe inspectors had left the site, started the plant up and ran full production for the next three days while performing running repairs - in the meantime breaking a library full of industrial, Worksafe and union rules and regulations in the process.

Smith, to say the least, was not impressed.

It is a sobering fact that in Australia some 650,000 workers suffer some form of work-related injury or illness every year. That's one in every 12 Australian workers. At least 120,000 of these injured or ill workers require more than five days off work.

It is also estimated there are nearly 3000 work-related deaths in Australia each year. This is almost twice the number of deaths each year from motor vehicle accidents.

At the same time around 430 fatalities occur in Australian workplaces as a direct result of traumatic accidents annually - the remainder of deaths are linked to work-related diseases, often the result of exposure to hazardous substances many years before.

The various economic losses from work-related deaths, injuries and disease impose a heavy burden on the Australian economy. The total cost of that workplace injury and disease has been estimated at topping nearly $30 billion each year or about the equivalent of the annual GDP for Tasmania, the Northern Territory and the ACT all combined.

Putting numbers on all of this, consider the following statistics:

• Over the next 12 months, about one in every 20 workers will suffer a work-related injury or disease.
• Every 2.4 minutes someone in the workplace will be injured seriously enough to lodge a workers' compensation claim.
• Young workers are particularly exposed, with 50 suffering compensatable work-related injuries every day, five of those resulting in permanent incapacity.
• In NSW alone, says the ACTU, 1 worker is killed every 43 hours.
• According to Workcover statistics, between 1987 and 2000 nearly 2500 people were killed in workplace accidents.

Safety in the workplace has evolved into a serious community issue. Serious enough that at some stage, nearly every state and territory government has considered drafting industrial manslaughter laws. Others have argued that cooler heads should prevail and that this is a futile distraction to the main issue of bettering Australia's current world ranking of seventh best when it comes to industrial safety.

One exception is the Australian Capital Territory (ACT) which, in March of this year, enacted its own industrial manslaughter law by amending its Crimes Act of 1900. With this legislation, the ACT put itself firmly on the side of those who believe that the law can be a powerful weapon in protecting workers. Although the current crime of manslaughter carries only a gaol term, the new Act also allows for a monetary penalty on a convicted corporation in terms of a breach, as well as a gaol sentence for up to a period of 25 years for company directors.

The reasons behind this move by the ACT are many and varied according to Katy Gallagher, the ACT Minister for Industrial Relations, but underlying this decision seems to be the belief that it will go some way in reducing industrial accidents. "Workplace death is a terrible loss for families, work mates and employers concerned. There are fatalities where employers have negligently or recklessly exposed employees to the risk of death through inadequate safety measures and unsafe work practices." As Gallagher notes, "Since self-government in the ACT, there have been 20 workplace deaths in Canberra and three in 2002/2003. We view these statistics as unacceptable. It is the responsibility of government to ensure that there is appropriate legislation in place to guarantee that the accepted community standards in OHS are enforced and complied with by all who bear responsibility in the workplace. Industrial Manslaughter is just one part of our strategy to address workplace injury, and workplace deaths."

While the ACT Government has indicated that it would not expect a large increase in the number of prosecutions under the new laws, nevertheless it is a landmark development, reflecting trends in overseas jurisdictions, including the United Kingdom and United States.

As the executive director of Victorian Worksafe John Merritt said, "Virtually all workplace deaths and injuries can be foreseen."

But there are those who say this is, at best, misleading. One of these dissenters is Federal Workplace Relations Minister Tony Abbot, who recently told a gathering of the Queensland Industrial Relations Society that "the industrial manslaughter mindset casts the employer as habitual villain. As a society, we need to demonstrate our abhorrence of slip-shod safety procedures and industrial shortcuts, but we should also beware the tendency to be wise after the event and seek scapegoats rather than solutions."

As for industry groups, the idea of this law is to say the very least, anathematic.

According to Australian Industry Group's (AIG) Victorian head, Paul Fennelly, while no one wanted to protect 'the ratbags', he doubted whether there would be a long-term saving of life or lessening of injuries under the laws as they focused on 'retribution not education'. This has been echoed by like-minded organisations such as Business Council Australia, which has gone on record as saying that it favours the "carrot and not the stick" approach when it comes toughening OH&S laws.

And according to Bill Smith, industrial manslaughter laws would not have made "one iota of difference in his case because the company he worked for had already been in court twice over serious accidents" and those appearances "had absolutely no impact on the management's mentality and its complete disregard for safety". As a deterrent, he says, these laws would have been "totally useless" in the case of his ex-employer.

Others such as NSW Special Minister of State John Della Bosca say that the current law is tough enough and there are ample opportunities to bring manslaughter charges against negligent employers if need be. "Under existing laws in New South Wales, directors and managers can already be deemed individually liable where the corporation has breached one of the strict liability offences of the Occupational Health and Safety Act.

"Manslaughter is also available under the Crimes Act where the degree of negligence can be established to the criminal standard of proof," he says.

Interestingly, both in NSW as well as Victoria, the respective Labor state governments have deliberately shied away from drafting specific industrial manslaughter laws, even though in Victoria's case the Labor Bracks government enjoys a majority in both houses of parliament and could pass the law with relative ease.

According to a spokesman for the Victorian Attorney-General Minister Rob Hulls, "Industrial manslaughter is not a policy of the Bracks Government. It was ruled out as a policy in the lead-up to the 2002 State Election." At the same time says Hulls, "the Government announced its commitment to revamp the Occupational Health and Act to ensure the state has a legislative framework that results in a lasting decline in work-related injuries, disease and fatalities."

When asked would having a specific and targeted industrial manslaughter law help reduce the rate of workplace injury in Victoria, Hulls quotes from the Maxwell Report, a recently-released independent review of Victoria's OH&S Act by leading Melbourne QC Chris Maxwell, "It also follows from the nature of OH&S offences that no question of industrial manslaughter can arise under the OH&S legislation." An employer, the report states "may be in breach of its safety duties under the OH&S legislation irrespective of whether death or injury results. It is the breach of duty, not the causing of a death, which gives rise to the offence. With manslaughter, on the other hand, it is the causing of a death which constitutes the offence, and that properly remains within the province of the general criminal law".

So as far as the Bracks government is concerned, the legalities of this issue look cut and dried and there should be a clear and distinct separation between the civil and criminal laws.

Just north of the border in NSW, the Carr government looks to be singing from the same hymn book. Underlining this position, John Della Bosca was quoted at a building union rally just last year as saying, "The current common law in relation to manslaughter is adequate."

Lately, though, Della Bosca seems to have had a change of heart of sorts, noting that the OH&S law may well need to be strengthened after all. In a prepared statement for this article, he said, "The government has sought advice from a panel of independent legal experts. The panel will examine the most effective ways of strengthening occupational health and safety laws, including the possibility of an additional offence of a breach of duty resulting in death, appropriate penalties, defences available to directors, factors to be considered by the courts when sentencing offenders, and the appropriate court to deal with these prosecutions."

The ultimate aim he says is to "reduce workplace fatalities by at least 20 per cent and the incidence of workplace injury by at least 40 per cent by 2012."

From a moral perspective, Victorian barrister and author on the subject of workplace safety Peter Rosen says that it is not the point whether workplaces are safer or not due to such draconian measures. "It seems to me the wrong question. One shouldn't look at whether it makes workplaces safer to justify having the laws. The conduct is either morally repugnant and deserving of prosecution under the criminal law or it is not. If it assists in making workplaces safer as well, then obviously that is a desirable objective," he says.

But the one thing that this entire argument lacks is the hard core evidence that such laws actually help decrease the number of people killed or injured at their place of work. That, unfortunately, is a retrospective and time-based calculation - one which cannot be predicted with even the slightest amount of mathematical or statistical integrity in advance. In fact, in many ways it is very much a catch-22 situation. Whether the various governments around the country take the plunge with industrial manslaughter laws is often due to a number of political considerations firstly and hard facts and figures second. However, if industrial manslaughter laws are not introduced, those hard figures will not even be compiled, let alone available, so the case for this legislation then becomes moot.

If left with only a potential political backlash from the business sector, it is hard to imagine any government, state or federal, left or right wing that would willingly ask for such political heartburn without even one shred of half-credible scientific data to back itself up.

In the middle of this debate are the country's eight million workers who deserve all the protection the law can afford them, since it is they who are affected the most when safety standards slip. Some argue that industrial manslaughter laws ultimately lead to a blame game situation, one where only the lawyers and vexatious litigators come out as winners. But at the end of the day, if lives are saved, maybe the end really does justify the means. And whether those means entail more safety education, better awareness of the prevailing industrial safety issues or a razor-sharp set of legislative teeth, then maybe it is the least bitter of pills to swallow.

As Workcover's John Merritt points out, "The impact of a [work-related] death can last a lifetime."