Employers Rally Against Victoria's Industrial Manslaughter Laws

A number of employer groups have expressed concerns about the Victorian Government’s proposed industrial manslaughter laws, claiming they will give rise to unintended consequences which impair, rather than enhance, health and safety outcomes at Australian workplaces.

Tania Constable, CEO of the Minerals Council of Australia, said the laws will not contribute to general or specific deterrence or improvements in health and safety outcomes.

“This must be the priority, not imposing oppressive and unnecessary criminal liability on selected individuals,” she said.

Constable said the council supports a legislative framework that achieves healthy and safe workplaces and provides for appropriate responses to where serious offences are proven.

“Enforcement must be based on the desire to improve OHS standards at Victorian workplaces and prevent further incidents by fostering prompt sharing of safety lessons across industry,” said Constable.

“Detailed and meaningful consultation on any amendments to OHS law, focusing on prevention and reporting, with all relevant stakeholders, including the minerals industry needs to be undertaken by the Victorian Government to provide the sector and the community confidence in healthy and safe workplaces.”

According to commitments Victorian Premier Daniel Andrews made in May last year, the Labour government intends to introduce the industrial manslaughter offence to the Victorian Occupational Health and Safety Act 2004 (see related article).

This commitment included Australia’s potential highest maximum work safety fine of more than $16 million for negligently causing death as well as up to 20 years in jail.

“It couldn’t be more simple: no one should die at work,” said Premier Andrews.

“These laws will help make sure that every Victorian makes it home to their loved ones.

“Families who have lost a loved one at work deserve justice – and that means jail, not a slap on the wrist.”

Master Builders Victoria also commented on the proposed laws, and said the prospect of a new criminal offence of industrial manslaughter will be devastating for the Victorian business sector

It may deter many smart, entrepreneurial persons with a strong sense of corporate social responsibility, from remaining, or becoming an employer in the first place, according to Master Builders Victoria, who also said it is likely to create litigious environments within organisations and regulators which will prevent learnings from incidents being properly uncovered and adopted.

“In terms of the likely increased legal risk management or ‘litigious’ environments which would naturally follow if laws like industrial manslaughter were to come in to effect, this would almost certainly result in larger businesses, with greater resources at their disposal, including high calibre lawyers, positioning themselves in such a manner to defend criminal prosecutions.

“The same is not true for small business, which simply will not be able to access such advice.”

Proponents of industrial manslaughter also argue that the introduction of such laws will create a ‘deterrent effect’ and that this will result in a reduction of workplace fatalities, however, “such positions require closer examination,” said Master Builders Victoria.

“For example, when we consider the criminal law, it is designed to work in two ways – specific deterrence and general deterrence.”

Specific deterrence is designed to ‘deter’ the offender from offending again and general deterrence is designed to send a message to the community that it ought to observe the rule of law.

In respect to specific deterrence, however, in many OHS prosecutions and cases, Master Builders Victoria said it seems that there is nothing to be learnt from the prosecution process that would assist an offender to improve their safety outcomes.

“When considering general deterrence, more often than not, small and medium sized businesses are not aware that an OHS prosecution has occurred – and general deterrence only resonates with a small proportion of business.

“This is why Master Builders has long advocated the view that the importance of the safety regulator playing a proactive role in increasing duty holders’ awareness, should not be underestimated.”

Article originally posted by the Safety Institute of Australia.