
Issue No 16		04 June 1999

News

Murder Call: Charge Bosses Who Kill

By Zoe Reynolds

The Maritime Union says it's time for the criminal law to deal with employers who ignore safety -- even if it means charging them with murder.

MUA national secretary John Coombs has called for murder charges to be laid against employers who knowingly expose their workers to life-threatening situations.

"Just as we successfully used the conspiracy laws to deal with the Patricks dispute, now it's time to look at the criminal law for safety issues," Coombs says.

The Maritime Union of Australia has obtained a copy of the potentially controversial document which advocates charging company executives with murder or manslaughter.

The report by John Braithwaite, Peter Grabosky and Brent Fisse, June 1986, advised the then state government that without a high profile, 'showcase prosecution' where rogue companies would continue cutting corners and ignoring safety standards at the cost of life and limb. Fines were not enough.

"Depending on how much the company is saving by cutting corners on safety," the report says. "It can be economically rational for the the company to ignore the law. Many Victorians remain unaware of the extent of death and injury in the State's workplaces. The use of the criminal sanction, with attendant publicity, will heighten public awareness of the issue..."

The advice, however, was never fully acted upon. And the subsequent conservative state government has, instead, watered down safety legislation so it is almost impossible for employers responsible for serious injury or loss of life in the workplace to be brought to justice. This is what makes the report even more relevant today.

According to its writers the existing law of murder in Victoria is sufficiently broad to include work deaths "arising from the acts or omissions of an employer who possesses the knowledge or belief that death or grievous bodily harm would probably result."

"To be sure, the circumstances necessary to support the framing of charges of murder would be extreme," the report says. "Yet, in the United States and Europe there have been successful homicide prosecutions of corporations and senior executives for health and safety recklessness."

So long as an employer directs an employee to perform a task involving hazardous machinery or toxic substances, without warning of the dangers or providing the required safety equipment, despite being aware that death or serious bodily injury could result, the employer could be convicted of murder.

Where such extreme callousness on the part of the employer" could not be proven the report advocates manslaughter charges instead.

"The distinction between murder and manslaughter in the workplace lies in the employer's awareness of the danger he or she is creating," the report says. "While murder convictions require the offender to know that death or grievous bodily harm will probably result from an act, manslaughter does not..."

So as to ensure the individual managers were convicted, the report stresses the importance of directly notifying top executives of workplace dangers. "There would be a real prospect of proving criminal negligence where an employer has been expressly warned of an obvious danger to life and has failed to rectify the problem despite ample time to do so before the danger has led to someone's death," the report says.

In the case of murder the only punishment in Victoria is life imprisonment - a punishment which cannot be imposed on corporations. But that is not the only reason it is important to hold individual executives responsible for their crimes.

The report argues that prosecuting companies is "highly unsatisfactory given the traditional value attached to individual responsibility as a mechanism of social control."

Convicting a company provides no guarantee that any executive will be held accountable, it says. Corporate representatives are much more likely to fear direct exposure to the criminal justice system.

"The first major case of a chief executive of a company being prosecuted for an occupational health and safety offence could be expected to have a particularly salutary effect," the report says. "Just as chief executives delight in having their photographs in The Financial Review with a caption about the improved performance of their company, all of them would squirm at the prospect of a photograph in The Financial Review as a convicted white-collar criminal."

The Crimes Act could also be used against an employer for injuries. The offence of negligently causing grievous bodily injury (Crimes Act, s26) can easily apply to the workplace.

The report advocates prosecuting employers for this offence in cases where,"but for the fortuity that death has not resulted from severe injury, a prosecution for manslaughter would have been justified".

Given that the current Victorian Government is unlikely to act upon the report, the Maritime Union is seeking legal advice on how the union would be able to instigate a murder charge itself.

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  Issue 16 contents

Interview: Opening Australia
Lindsay Tanner talks about new ideas, new policy and new politics in the Information Age.

Unions: An Educated Fightback
A visiting US trade unionist reveals how training better union delegates is the key to reversing the membership slide.

Legal: A Fair Case for Free-Rider Laws
The proposal to enable unions to charge non-members a service fee for negotiating enterprise agreements is consistent with the principle of freedom of association.

History: New Ideas in Labour History
See the latest from the May issue of Labour History, A Journal of Labour and Social History.

International: Tiananmen Square Ten Years On
We remember the massacre and the role that working people continue to play in fighting injustice.

Review: Organising Our Future - What Use the US??
A new paper looks at what Australian unions can learn from the experiences of their American colleagues.

» State Wage Highlights Case for User-Pays

» Labor Hire Cowboys - the NFF Link

» Murder Call: Charge Bosses Who Kill

» Braddy Bunch to Lift Contractor Veil

» Rural Redundacies - Redeployment Confusion Reigns

» Woolies Shopfitters Win Back Jobs From Body Hire

» Political Payback: NSW Targetted in Costello Cuts

» Rio Tinto Buries the Truth

» Child Care Campaign out of the Blocks

» East Timor Mercy Ship heads for Dili

» Fabian Society Reforms

» Industrial Whoï¿½s Who Head for Geneva