||Issue No. 191||15 August 2003|
Three Year Itch
Interview: The New Deal
Unions: In the Line of Hire
Culture: Too Cool for the Collective?
International: The Domino Effect
Industrial: A Spanner in the Works
National Focus: Gathering of the Tribes
History: The Welcome Nazi Tourist
Bad Boss: Domm, Domm Turn Around
Poetry: Just Move On.
Review: Reality Bites
The Locker Room
MUA CD Launch
The Remittance Man
Government Kills Manslaughter Bill
NSW Minister for Industrial Relations John Della Bosca MLC, NSW Attorney General Bob Debus MP and the architect of the failed Victorian legislation David Moody from Slater and Gordon spoke at the event, which was held by the ALP's Employment and Industrial Relations and Law Reform and Constitutional Processes Policy Committees.
The Ministers present did not commit themselves to passing any new legislation but Minister for Industrial Relations John Della Bosca indicated his willingness to look at shortcomings in the OHS law. He said that as a result of discussions in Bathurst the NSW Government would look closely at the operation of the OHS Act in relation to fatalities. The minister said he had also approached the Attorney General regarding sentencing guidelines for OHS prosecutions.
"There are several suggestions from our discussions which I am now examining," he said.
CFMEU Says Current Laws Inadequate
The CFMEU, who support of the creation of an offence of corporate manslaughter/killing in the Crimes Act, pointed to cases like the death of Dean McGoldrick. His employer was fined $20 000; a sign of the inadequacy of the current OHS laws on workplace fatalities.
The CFMEU's Rita Malia, who was present at the conference, used the recent Pan Pharmaceuticals crisis to argue tougher measures were needed to protect against negligent bosses.
"If the Pan Pharmaceuticals crisis had resulted in the death of a customer the public would expect the company to be charged with manslaughter. And if the Crimes Act was not able to convict the company, then the public would expect that the law be amended.
"The death of workers should be investigated and prosecuted by the Director of Public Prosecutions just like any other fatality caused by gross negligence such as negligent driving. NSW here has the opportunity to become a world leader in addressing fatalities at work caused by gross negligence," said Malia.
The Victorian Experience
David Moody, who drafted legislation in Victoria that was subsequently defeated in that state's upper house, pointed out that it is currently "practically impossible" to prosecute a corporation or a director of a large corporation for the crime of manslaughter but that amending our laws would enable this to happen.
"Criminal law in Australia is not practically capable of being used successfully in prosecuting corporate criminal behaviour which results in the death or serious injury of workers,' said Moody. "It is not uncommon for a company facing OHS/criminal charges to go into liquidation, thus avoiding payment of any fines which might be imposed on the corporation.
"There is nothing which focuses a senior officer's mind more on OHS issues than the prospect of gaol time in the event of a breach."
Moody argued that inclusion of new corporate criminal offences in the existing OHS Act would lead these offences to be "regarded by both the public and the courts as 'second rate crimes' not worthy of serious attention and certainly not worthy of real criminal sanctions (such as gaol terms)".
Moody said the failure of the Victorian legislation was due to the consultative process, with only four of over forty submissions on the legislation coming from unions or victims groups.
The View From The NSW Govt
"The Carr Government takes workplace safety very seriously," said Della Bosca after the forum. The Minister set out the NSW Government's record on workplace safety including the establishment of a Fatalities Unit in WorkCover with expertise in criminal prosecutions.
"In addition to monetary fines of up to $825,000, current laws also provide for custodial sentences," said Della Bosca. "I was particularly interested to hear one of the architects of the (now withdrawn) Victorian Bill explain that the Victorian legislation would be unable to deliver what NSW unions are calling for. It is a complex and difficult issue."
"In 1997, Professor Ron McCallum recommended that because there is an existing crime of manslaughter when workplace deaths are caused by grossly negligent and/or reckless conduct, there was no need to place the crime of industrial manslaughter in the Occupational Health and Safety Act," Mr Della Bosca said.
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