Our Workplace team provides a snapshot of recent WHS developments in South Australia including in relation to industrial manslaughter, enforceable undertakings and ICAC Reports into Public Integrity.
Changes approaching? The Industrial Manslaughter Bill
On 1 May 2019, the Honourable Tammy Franks MP of the South Australian Greens introduced a bill amending the Work Health Safety Act 2012 (SA) (WHS Act) to create the offence of industrial manslaughter.
Information published by SafeWork Australia records an increase in the number of worker fatalities in Australian workplaces as at 7 November 2019, when compared to the year before. Between 2003 and 2016, 3,414 Australian workers have died at work.
The introduction of the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2019 (the SA Bill) joins a growing movement in other States to introduce the offence. Industrial manslaughter laws are already in place in Queensland and the ACT. A recent Northern Territory bill proposes to introduce the offence of industrial manslaughter in its work health and safety legislation. Victoria is also set to introduce the offence of industrial manslaughter, with a bill to amend its work health and safety legislation currently before Parliament.
The SA Bill prescribes jail terms of up to 20 years for officers or employers who are natural people who 'knew, or ought reasonably to have known, or [were] recklessly indifferent as to whether' their breach of the WHS Act would create a substantial risk of serious harm and that breach caused the death of a person. The SA Bill also makes it clear that both an employer and an officer of that employer can be found guilty of industrial manslaughter in respect of the same death.
The SA Bill proposes a maximum fine of $1 million for a body corporate that commits industrial manslaughter. The proposed fine is considerably lower than interstate fines. The maximum fine for a body corporate that commits industrial manslaughter in Queensland is $10 million, with Northern Territory and Victoria expecting to introduce fines of approximately $10 million and $16.5 million respectively. However, Ms Franks indicated she would be 'open to raising the fine…if the political will is there'.
The second reading speech of the SA Bill has been adjourned. We are yet to see its outcome and the approach that Parliament will take. Needless to say, the introduction of the SA Bill is a reminder that Australians are committed to seeing proactive change and that flagrant disregard of safety by officers and workplaces be held to account.
It would be timely to consider your work health and safety systems, review organisational training, and take stock of the culture and key messages about safety to minimise risk of breaches of the organisation's safety duties.
Moving forward, stay tuned for further information about the direction the SA Bill takes.
Low-spend undertaking permitted in lieu of prosecution after finger amputation at work
Solar Eggs Farms Pty Ltd has entered into a $50,658 enforceable undertaking after a packing and distribution centre worker's right hand became trapped in machinery, resulting in the amputation of four fingers. When an egg fell between a drop tray and a conveyor belt, the worker reached into the operating machine to retrieve it, where her hand became trapped in the drive chain.
SafeWork SA alleged Solar Eggs breached sections 19 and 32 of the WHS Act by failing to provide and maintain a safe plant that was guarded in all areas where drive chains were exposed, particularly those adjacent to workers' stations. It also alleged breaches of those sections in respect of Solar Eggs':
Failure to provide and maintain a safe plant insofar as it failed to ensure doors to cabinets enclosing moving parts were locked while the machine was in operation;
Failure to provide and maintain a safe system of work which was based on adequate hazard identification and risk assessment and ensured adequate Safe Operating Procedures were provided and maintained; and
Failure to provide instruction, training or supervision in relation to the machine.
Following the incident and an investigation by SafeWork SA, the employer was issued prohibition and improvement notices. Solar Eggs subsequently applied to enter into an enforceable undertaking with SafeWork SA, as an alternative to a prosecution.
Of its own initiative, Solar Eggs spent $92,401 on rectifications after the incident, including installing guarding on its egg grading and packing machine, re-inducting employees and implementing or improving emergency stops and operational controls in the facility. Solar Eggs also engaged a work health safety consultant who developed Safe Operating Procedures for the facility.
The terms of the enforceable undertaking entered into included Solar Eggs:
Continuing to engage the work health safety consultant on an ongoing basis for one day per fortnight for a further 24 months;
Providing the injured worker with assistance with day to day living and recreational activities;
Developing further Safe Operating Procedures; and
Updating signage and procedures and undertaking associated training.
Solar Eggs also agreed to participate in a number of activities said to deliver safety benefits for the industry as a whole. These included:
- Participation in a forum or presentation during which it would speak in relation to the enforceable undertaking and the mitigation of risks associated with grading machines;
- Production of an alert to be disseminated to South Australian egg producers in relation to the incident, the risks associated with grading machines and how the risks can be mitigated; and
- Meeting and a presentation with South Australian egg producers in relation to the incident, risks and risk mitigation with grading machines.
Executive Director of SafeWork SA, Martyn Campbell, said 'applications for [enforceable undertakings] are assessed on a case-by-case basis and need to demonstrate benefits to the workplace, their industry and the wider community'. He emphasised that enforceable undertakings were not a way to avoid prosecutions, but rather an alternative enforcement option to rectify breaches of the WHS Act.
In the case of Solar Eggs, there was a commitment by Solar Eggs to looking at workplace safety holistically. The demonstrated examples of how it had intentionally sought to improve its workplace safety in the two years after the incident were viewed favourably by the Regulator when assessing whether or not to accept the enforceable undertaking.
Employers need to bear in mind that enforceable undertakings are not a fail-safe to avoiding prosecution. They are carefully monitored by SafeWork SA. A breach of an enforceable undertaking can lead to a prosecution for the original safety breach. However, when entered into with a careful and well-executed plan, they could be a means of better directing time, energy and money into improving workplace safety rather than financial penalties without any direct workplace outcome.
Emphasis from the Independent Commissioner Against Corruption: – Don't 'camouflage poor systems'
In August 2019, the Independent Commissioner Against Corruption (ICAC) released a report titled 'In Their Own Words', following on from its 'ICAC Public Integrity Survey 2018'.
Both reports were prepared using data from a survey made 'live' for a month in 2018. Over 12,500 public officers provided responses. Of these, 2,064 of the participants provided usable written responses for qualitative assessment purposes (that is, feedback such as '*', 'N/A' or 'No Thanks' etc was excluded from being taken into account).
The 2018 report is quantitative in nature, while the 2019 report is qualitative. In the foreword to the 2019 report the Honourable Bruce Lander QC wrote that the 2019 report 'examines what public officers had to say, in their own words, about the culture and practices of the agencies within which they are employed'. In that report, the conduct reported as of most concern was that of bullying and harassment. 44% of participants reported having personally encountered bullying and harassment in the last five years and 35% felt their organisation was highly or extremely vulnerable to bullying and harassment.
Those are matters of increasing scrutiny both in the public and private sector. However, all public officers (by nature of their role) are publicly accountable for their workplace conduct, irrespective of how senior or junior their role may be.
The 2019 report states 'taken together the quantitative and qualitative data suggests there are a significant number of public officers who do not feel safe to voice genuinely held concerns. Whilst fears of retribution from a more powerful colleague who had been reported was expected, the qualitative feedback highlights that this issue may go further and reflect broader issues of work culture'.
The Commissioner has emphasised that reports of inappropriate conduct needed to be taken seriously – in particular, 'the aim at the outset should not be to minimise the seriousness of the conduct, diminish responsibility for inappropriate conduct or camouflage poor systems or procedures for the purpose of ensuring the best 'look' for an organisation'.
The 2019 report urges agencies to review their policies and procedures to ensure there are no loopholes and that their policies and procedures are providing effective integrity controls.
In concluding the foreword to the 2018 report, Commissioner Lander stated 'Listening to staff is fundamental. Staff attitudes drive culture and culture drives integrity'.
In a context where the Australian community is demanding higher standards of corporate and personal workplace conduct, organisations should be mindful of doing a regular stock check of workplace behaviour, reviewing its policies, procedures and training relating to workplace behaviour and evaluating its grievance and investigation mechanisms.