Anyone involved in running a business needs to be aware of the tug of war over work safety laws. Whether you are an employee, manager, executive or owner, you are at risk. This applies to businesses of all sizes.
The question is, if there is a work accident, will you be prosecuted and fined or jailed, even if you were not directly involved in causingit?
Will you have access to the proper processes of justice, including presumption of innocence, trial by jury and rights of appeal? Can you be prosecuted twice for the same offence?
In the past few years there have been several occupational health and safety convictions in which individuals have been denied normal legal process.
The issues are clear. Take a simple example: At a warehouse, employees play cricket every lunchtime on an outside truck loading bay. Cricket balls are constantly hit on to the warehouse roof. To collect the balls, employees take use a forklift. Someone stands on the arms while they are extended beyond the forklift's safe limit. One day the forklift is on a small slope and tips. An employee falls and dies.
Who should be blamed? The company had a policy that forklifts should not leave the warehouse. The supervisor knew this was happening but ignored the behaviour. It is a breach of forklift operating instructions to stand on forklift arms or to operate on slopes.
The answer as to who should be prosecuted is the subject of fierce debate by OHS academics, government advisers, unions and industry groups. It's about to flare politically.
And there are two strongly opposed ideas on what legal approach should apply.
One argues that work systems run by companies are at fault. Every OHS incident is the result of a system failure. The theory is that the people who design and run work systems should be blamed.
In the case of the cricket ball example, the company and executives and managers would be prosecuted. Even though the company policy banned the use of forklifts outside, the system failed because the supervisor and employees broke company rules. The reasoning is that the managers should have stopped the breach.
This systems-blame approach dominates NSW work safety laws. NSW also applies presumption of guilt, has no trial before a jury and no rights of appeal. And NSW has more prosecutions and convictions than the rest of Australia.
The other approach is to hold everyone responsible for what they control.
In the cricket ball situation, the person who drove the forklift, the supervisor who allowed forklifts to leave the warehouse, other employees who took part and even the executives could face prosecution.
A judge would look at who had control, how much control they had, to what extent each person breached safety guidelines and allocate blame accordingly.
This is the approach in Victoria. Presumption of innocence applies, a trial can occur before a jury and full rights of appeal exist.
The difference between NSW and Victoria is enormous. The other states are a messy mixture, usually following Victoria but Queensland and the ACT have elements of NSW, and Tasmania and South Australia are considering adopting some NSW ideas.
Anyone operating businesses in several states is caught in legal chaos.
The unions run emotion-charged "blame-the-bosses" campaigns demanding that the NSW model be adopted nationally. Further, they want industrial manslaughter laws that would secure manager jailings. This has strong support among many independent parliamentarians in the states, including the Greens.
The Commonwealth is about to enter the debate in a big way, with a push for national consistency. Its approach is similar to Victoria but the Commonwealth also wants to make sure that if anyone faces jail for a breach of work safety laws, full criminal justice applies.
The problem with the "systems-fault" approach is that it encourages some people, mainly employees, to think they can breach work safety practices and not face blame. Other people are prosecuted for employees' actions. This creates unsafe and dangerous work cultures.
The only approach that will focus everyone on work safety is one in which everyone is held responsible for what they control. No one should be outside the safety responsibility net. Employers, employees, managers, executives, supervisors, independent contractors, government officials, unions and anyone else should all bear responsibility for what they control. This should occur in a framework of legal justice.
The need for nationally consistent laws is urgent. But it needs to be the right sort of consistency, one that produces a total community commitment to work safety.
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