Introduce Industrial Manslaughter and Ban WHS Insurance, Says Inquiry

A Senate Committee has handed down its 135-page report on the “framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia”. In it, it makes a number of key recommendations including introducing national industrial manslaughter laws, amending the WHS Act to ban companies from buying insurance against fines, and not allowing repeat WHS offenders to bid on government contracts.

Amending the WHS Act to ban insurance against fines

The Federal Senate Education and Employment References Committee report states the committee finds it “utterly reprehensible” that insurance policies are available to insure corporations and individual directors against financial penalties handed down for breaches of WHS legislation.

Associate Professor Neil Foster told the inquiry that insurance policies against criminal penalties continued to be issued by insurance companies, and continued to be bought by companies on behalf of directors, despite the fact that these insurance policies are void and unenforceable. Foster said as long as these insurance policies remain unchallenged, directors and insurance companies would continue to enter into transactions at the expense of workers.

“The people who are forgotten in that transaction are the workers; this insurance, as it were, insulates the directors of the company from the decisions they make in relation to workers.”

“Research shows that the prospect of personal liability for WHS breaches is one of the key ‘drivers’ for improvement of corporate safety, and the continued unlawful offering by insurance companies of insurance for directors against WHS penalties seriously undermines that incentive.”

To resolve this situation, Foster suggested that Parliament needed to intervene and change the legislation to spell out very clearly that such arrangements are unlawful.

Implementing industrial manslaughter laws nationally

The committee recommends that Safe Work Australia work with government to introduce a nationally consistent industrial manslaughter offence into the model WHS laws, and pursue adoption of this amendment in other jurisdictions through the formal harmonisation of WHS laws process.

The report says it is “absolutely necessary” for corporate entities to be held accountable for their actions, including facing prosecution for industrial manslaughter for the worst examples of corporate or individual behaviour.

“For those few organisations that wilfully flaunt the existing WHS arrangements and whose negligent actions result in a catastrophic outcome (the death of a worker or a bystander) the committee believes it is entirely warranted that serious consequences flow.”

The Coalition members of the committee disagree on this point, and say there is no clear evidence that industrial manslaughter laws reduce the risk of workplace fatalities. In fact, they are concerned that industrial manslaughter laws would create overlapping offences that “complicate rather than support accountability.”

“Additionally, it promotes an adversarial legal approach based on a blame culture. It is punitive rather than preventative, which can ultimately distract from the core object of work health and safety laws in Australia,” the Coalition Senators say.

Other recommendations include:

• Corporations that repeatedly breach WHS obligations and cause death or serious injury should not be awarded Commonwealth, State or Territory government contracts
• Amend the model WHS laws to provide that a WHS regulator must in all relevant circumstances provide a published, written justification for why it chose not to bring a prosecution following an industrial death
• Amend the model WHS laws to provide for unions, injured workers and their families to bring prosecutions
• Amend the model WHS laws to include the establishment of a dedicated WHS prosecutor in each jurisdiction, similar to the model introduced in Queensland
• Safe Work Australia work with WHS regulators in each jurisdiction to develop a policy which stipulates that all industrial deaths must be investigated as potential crime scenes
• Safe Work Australia work with WHS regulators to develop a policy to formalise collaboration and evidence sharing between WHS regulators and law enforcement agencies during investigations following an industrial death
• Safe Work Australia work with Commonwealth, State and Territory governments and WHS regulators to develop and deliver standardised training modules to ensure that all investigators have the appropriate skills, experience and attitude to carry out high-quality investigations of industrial deaths and other serious breaches of WHS laws.
• Update the model WHS framework to cover precarious and non-standard working arrangements (including labour hire) to clarify the extent, scope and nature of the primary duty of care and the obligation under the model WHS Act on duty-holders to consult with each other, as well as workers and their representatives
• Safe Work Australia work with WHS regulators in each jurisdiction to collect and publish a dataset which provides annually updated and detailed information on the prosecution of industrial deaths