WORKPLACE SAFETY LEGISLATION AMENDMENT (WORKPLACE MANSLAUGHTER AND OTHER MATTERS) BILL 2019
Mr KENNEDY (Hawthorn) (16:13:00): I imagine—in the work that I do, anyway, in this place and that is associated with this place—there is a thirst for a world that is fair, productive and compassionate, and personally I try to apply all three. I recognise that it is not always possible to have those commodities in equal measure and that sometimes they stand in contradiction. Something that is productive, for example, may not always be fair. Something that is compassionate may not always be fair. So I recognise the complexity of that situation as we look at legislation and so on. However, when I look at something like this particular bill, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019, I think it is a very clear case where in the interests of all three commodities—fair, productive and compassionate—we should have no hesitation in seeing it through the houses. I would just like to make that general remark about this. I think everybody has been able to think of cases, and a lot of our speeches today have begun with people we have known who have been the victims of workplace incidents. There is no question about that, but we need to be careful that in being aware of these particular stories or encounters we do not just slip back into, ‘Well, that was a special situation, and unfortunately there was this mitigating circumstance, and of course there was this footnote’, and so on and so forth. So what we are really saying is that we cannot just simply run with the stories. We have got to say, ‘What is the learning? What is the learning from those 20 deaths? Where do we go from here?’. I think this bill is a good attempt at doing just that. Just to repeat: its three objectives are to deliver the Victorian government’s commitment to introduce new workplace manslaughter laws, to enshrine the role of the Workplace Incidents Consultative Committee in legislation and to amend the Workplace Injury Rehabilitation and Compensation Act 2013 to remove the requirement that the chief executive officer of WorkSafe Victoria also be a director of the WorkSafe board. This bill fulfils an election promise not only to the people of Victoria but in particular to the families who have had to deal with the appalling trauma of losing a loved one at work. It also sends a clear message that putting lives at risk in the workplace will not be tolerated. It addresses the need for stronger deterrence and the difficulties of prosecuting a company and its officers as outlined who are negligent. People could say, ‘That sounds good, but in the enactment of that there is this possibility and there is that, and so on’, and that may be so, but I do not think it excuses us or gets us away from the basic reason for having this particular bill. Whatever variations need to be made should be considered. The workplace manslaughter offence applies where an employer or an officer of the employer engages in conduct that breaches an applicable duty under the Occupational Health and Safety Act 2004 and thereby is criminally negligent and causes the death of a worker or member of the public. One of the purposes of the bill is to ensure that WorkSafe and the Office of Public Prosecutions have the appropriate laws necessary to prosecute in the unfortunate circumstance where a fatality has occurred, the elements of the offences are met and it would be in the public interest to do so. The new offence will apply to deaths as a result of a physical or mental injury and workplace illness such as silicosis. Organisations and officers would now be held to account, with penalties in the bill reflecting the seriousness of this type of offending—maximum penalties of some $16.5 million for employees and 20 years imprisonment for individuals. This may be contrasted with the Queensland legislation, where individuals cannot be prosecuted. The current average penalty imposed for the death of a worker is $350 000 to $400 000, which—however regrettably—can, particularly for rogue employers, be factored into the cost of doing business. The existing penalties under the OH&S act do not act as a significant deterrent for unsafe work practices. They should be reviewed and strengthened. Accordingly, the new laws will apply to employers, self-employed persons and officers of employers. Employers capable of being found liable include a body corporate, an unincorporated body or association and a partnership. In the dreadful circumstance with which this bill deals, there can no longer exist corporate veils of secrecy and immunity behind which the negligent or uncaring may seek refuge. These are not matters for partisan bickering or attempted pointscoring, and the community will look to see how the opposition responds. This is not part of some little labour versus capital war in the alleyways; it is bigger than a labour versus capital war in the alleyways. It really is, to use a cliché, a matter of life and death. It follows that the new offences are needed and that the common law’s historic deference to corporate anonymity and negligent directors and officers should be brought up to date to meet the community’s expectations. Can there be any doubt as to the community position where workplace death, serious injury or illness occurs not through some regrettable human slip or miscalculation but through some calculated negligent act or omission? There are, however, inexplicable though they may be to our eyes, notorious contemporary examples of public risk, where there has been not a thought given to consequence. Think of the unlawful demolition of the Carlton hotel and the subsequent open-air dumping of the resulting building debris containing cut and broken asbestos, all with no protective steps taken to safeguard the public. Does such corporate callousness or carelessness accord with the public sentiment? I think not. Should the common law not be adjusted to have those directing such outrageously dangerous conduct made susceptible to serious sanction? The bill also improves support for victims and families of workplace fatalities and serious incidents by enshrining the Workplace Incidents Consultative Committee in legislation. The committee will provide victims and families with a public voice and a platform to influence government policy or workplace safety. I commend the bill to the house.