Workplace Fatalities

About this Item
SubjectsOccupational Health and Safety; Law and Legislation: New South Wales
SpeakersDella Bosca The Hon John; Gallacher The Hon Michael
BusinessMinisterial Statement

Page: 12019

    Ministerial Statement

    The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for Industrial Relations, Assistant Treasurer, and Minister for the Central Coast) [11.34 a.m.]: I wish to address the House in relation to workplace fatalities. Honourable members will be aware of community concern about workplace deaths, the need for appropriate penalties to ensure the punishment fits the crime and that employers have the appropriate incentives to operate their businesses safely. This has nothing to do with ideology. This is about community concern that corporations, whether they be small or large, behave in accordance with the basic principles of human decency. Where they do not, the community expects Parliament to do something about it. The community is one step ahead of some businesses and most politicians in that it realises the old trade-off between safety and commercial success is an irrelevant legacy of the nineteenth century and has no place in a modern economy. The community wants directors and managers to pay as much attention to the health and safety of their workers as they do to the dividends paid to shareholders.

    If you have a safe working environment you are more likely to have a profitable company. New South Wales has one of the most robust occupational health and safety frameworks in the world—one this Government proudly introduced. We are one of the few places where workers have a statutory right to be consulted about the safety of their workplace, and where maximum flexibility exists for employers to arrange for a safe, effective and productive workplace. While the rate of incidents and injuries has been falling consistently, there are still too many workplace deaths in this State. The Government wants to ensure we have the legislative framework that provides the right incentives to employers to protect workers from risks.

    As a result of this debate, we now have a protocol between WorkCover, police the Coroner and other relevant agencies to ensure that in the very small number of cases where a death is clearly a police matter, we have procedures that ensure there is sufficient and properly collected evidence for charges under the Crimes Act, if they are appropriate. While that option remains, there has been a great deal of debate about other ways of addressing this critical issue. General Purpose Standing Committee No. 1 canvassed many of the issues in its inquiry into workplace fatalities conducted earlier this year.

    In November 2003 I appointed an eminent panel of legal experts including the Sydney University Dean of Law, Professor Ron McCallum, to advise the Government on the best legal improvements, particularly as they relate to workplace fatalities. On 28 June I addressed this House following receipt of the report and undertook to consult widely on its findings. The panel recommended that New South Wales introduce an additional offence in the Occupational Health and Safety Act, specifically relating to workplace fatalities, including higher penalties for first offenders. The panel unanimously ruled out industrial manslaughter laws generally and any new offence under the Crimes Act. The panel carefully explained that such legislation would be unhelpful, a retrograde step, unlikely to be utilised to any significant degree and tokenistic in nature. The panel's advice was that it would not improve the occupational health and safety of workers in New South Wales.

    The Government accepts this advice. In discussion with stakeholders, the panel explained the Crimes Act would not be used as a weapon against rogue employers but, rather, it would become their shield. Rogue employers would gain comfort from the knowledge they had nothing to fear. That would be exactly the wrong outcome. On behalf of the Government, I am definitively and finally ruling out any proposals of industrial manslaughter in New South Wales. This has been a worthwhile debate but it is clear this is not the way to make our workplaces safer. The concept of industrial manslaughter will not work and that debate continuing will be a barrier to safety because, among other reasons, collaboration between employers and workers will be made more difficult.

    Only a small number of industrial deaths each year are because of a complete disregard for basic occupational health and safety and common decency. In these instances, the community is demanding the potential for gaol sentences. Since the release of the panel's report in June, an extensive consultation process has involved the key stakeholders. I thank employer and union groups alike for their constructive and timely responses to the report and to record the Government's appreciation for their contribution. The panel of experts has been an integral part of the consultation process and members were generous with their time as they discussed, explained and answered the concerns of employers, unions, workers and their families. Once again I offer my sincere thanks to Professor McCallum, Peter Hall, QC, Adam Hatcher and Adam Searle.

    I am pleased to announce that today I am releasing for public consideration an exposure draft bill of the Government's proposed legislative reforms to occupational health and safety laws. These reforms contained in the draft Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill will implement the recommendations made by the panel. Following that advice and in light of the constructive comments and advice received from stakeholders in the consultation process, the Government proposes an amendment to the Occupational Health and Safety Act 2000 to create a new offence with a higher penalty regime, where contravention of the Act causes the death of an employee or other relevant person. The bill provides for penalties of up to $165,000 for individuals, including directors and managers, and $1.65 million for corporations in the case of a previous offender. The monetary penalties are generally double those currently available. There is also provision for up to two years imprisonment for first time offenders and five years imprisonment for subsequent offenders. The possibility of imprisonment for first time offenders is a specific recommendation of the panel.

    The bill includes an amendment to the Occupational Health and Safety Act 2000 to expressly provide for five aggravating factors a court must take into account when sentencing under the Act. Those factors are that, firstly, the risk to safety was reasonably foreseeable; secondly, there were feasible measures reasonably available to the offender to prevent or mitigate risk; thirdly, the risk from the breach could have caused serious injury or death; fourthly, death or serious injury was caused by reckless or negligent conduct; and, fifthly, the employer gained a financial advantage by not implementing safe systems of work. Listing these factors in the Act will ensure that the courts must recognise the unique features of occupational health and safety laws when sentencing offenders. They will promote greater transparency and accountability in the sentencing process.

    In order to ensure that the rights of individuals convicted of offences under the Act are protected, the bill also includes amendments to the Occupational Health and Safety Act 2000 and the Criminal Appeal Act 1912 to allow limited rights of appeal from the Industrial Relations Commission in Court Session to the Court of Criminal Appeal. Those two limited rights of appeal are in relation to, first, acquittals that are overturned by the commission on appeal and, second, appeals against terms of imprisonment. The bill also ensures that the legislative provisions adequately support the making of an application for a sentencing guideline under the Act. The amendments put beyond doubt that convictions for offences committed under the former Occupational Health and Safety Act 1983 may be used for the purposes of making a sentencing guideline application under the current Act.

    The panel also proposed a code setting out the responsibilities of directors and managers. It is clear from the consultation we have undertaken that there is a divergence of views about how such a code would work and what it would say. In view of the differing opinions, I have referred the panel's recommendation about a code of practice to WorkCover's Advisory Council to consider the panel's report and advise me on both the content and structure of such a code. I believe the proposals for reform of the occupational health and safety laws contained in the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill will improve workplace safety in this State. That is a necessary outcome. This debate is not simply about punishment. Any change must provide the right motivation and incentives to ensure that employers make effective changes to their workplace and to the safety culture of their business.

    These reforms are an appropriate and measured response to the community's demand for safer workplaces. Hard-working, responsible employers have nothing to fear from this bill. This bill is aimed at a minority—the rogues whose indifference to health and safety results in death. The community demands that the punishment must fit the crime. These amendments have the safeguards to do so; they provide the penalties and incentives to ensure that people who leave for work can return home safely to their families and friends. A great deal of passion has been shown in this debate, understandably and rightly so. It deals with a very serious matter—the death in a workplace of someone's son or daughter, a friend or a colleague. It is an issue the Government had to resolve.

    This bill resolves the issue not with a token measure, but with an effective series of amendments to ensure the health and safety of everyone in the workplace, regardless of their importance to the business, their age, their experience or their pay packet. Already a long period of discussion, inquiry and debate has ensued, concluding with this draft legislative amendment. The Government intends to proceed following a short period of consultation, but we will be guided by the major stakeholders. I look forward to hearing the views of unions, workers, employers, parents and members of the House. I believe we all want safe and just workplaces.

    The Hon. MICHAEL GALLACHER (Leader of the Opposition) [11.44 a.m.]: The Coalition is concerned about workplace fatalities and workplace safety. As we have stated on many occasions, the Coalition will support any reasonable legislation or program that will increase workplace safety. Last weekend in my area, and the area in which the Minister for Industrial Relations lives—the Central Coast—we suffered the tragic death of a 28-year-old contractor working at the Westfield shopping centre who, after cutting through wires, fell four metres to his death. He leaves behind two small children. Every member would be aware of people who have been seriously injured or have died at the workplace, whether it is a worker in a factory or a truck driver or courier on the road. We would all have anecdotes about such incidents and the memory of them stays with us for many years.

    In my former role as a police officer I was called on a number of occasions to attend workplaces where people had been seriously injured or killed. One particular incident that occurred in the 1990s is permanently burned into my memory because it illustrates how quickly injuries can happen in the workplace. One morning I was called to a workplace at Somersby where people were involved in the removal of sandstone blocks to be used in the building industry. The weather was not dissimilar to this morning's—mild temperature with a morning shower. The workers were cutting through sandstone with heavy equipment and pulling out 1½ metre blocks to be taken away. As the rain came, the workers decided that it would be a good time to run back to the work shed and take a smoko.

    A big, strapping young fellow in his late twenties realised he had left his cigarettes on the work site. The hole the workers had cut into the sandstone was a little more than 1½ metres long and 2½ metres across. Instead of walking around the hole, the young fellow decided to jump across the hole to pick up his cigarettes. As he jumped his foot slipped on the sandstone. He landed on his rib cage on the other side of the sandstone, was winded and dropped down into the hole. The first thing we do when we are winded is suck in air. Unfortunately, this young gentleman sucked in muddy water. The water went straight into his lungs and in a matter of seconds he was dead. I was one of the police officers who attended at the workplace and the incident burned into my memory; how quickly a person can lose his life by doing something that seems so easy and simple, perhaps lazy, but has tragic consequences.

    The Coalition believes that workplace safety requires a multiple approach: education and support for employers and employees. We do not believe a purely punitive approach will achieve the desired outcome. Just as traffic safety requires education as well as penalties for breaches of the law, so does workplace safety. The exposure bill now presented by the Minister follows on two inquiries: an inquiry by General Purpose Standing Committee No. 1 of this House, whose findings seem to have been relatively ignored by the Government; and an inquiry instigated by the WorkCover Authority, whose report was presented in June this year. This bill is presented to us as the outcome of the WorkCover Authority report.

    The Coalition will give careful consideration to the bill and proposes to consult widely before stating a definitive position. It is worth noting that the Government itself does not have a perfect record in workplace safety. One wonders how the McInerney report into the tragic death of a StateRail employee at Waterfall will inter-relate with this draft legislation imposing serious penalties on corporations. Another point that the draft bill raises is the question of appeals. Appeals are to be allowed to the Court of Criminal Appeal from decisions of the Industrial Relations Commission under this Act while the Government continues to refuse to allow appeals to the Court of Appeal from other decisions of the Industrial Relations Commission. The inconsistency is obvious. However, as I have stated, our overwhelming concern is the safety of every worker and we will assess the draft legislation in that light.

    The Hon. JOHN DELLA BOSCA: I table the consultation draft bill entitled "Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004".

    Ordered to be printed.