Parliament passes the Industrial Manslaughter legislation
Last week Victoria became the third Australian jurisdiction to enshrine the offence of industrial manslaughter in law, with an Amendment Bill (and the country's highest work health and safety fine) passing Parliament without any changes.
The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 [pdf], now awaiting royal assent, will commence on a day to be proclaimed or 1 July 2020 at the latest. It introduces maximum fines of 100,000 penalty units (which at the moment means $16,522,000) for bodies corporate, and jail terms of up to 20 years for company officers, who negligently cause the death of a worker or member of the public.
The Andrews Labor Government Bill was introduced into the Lower House on 29 October, and it was subsequently revealed that the new laws could capture practices that "fail to create a culture of compliance", actions that cause a mental illness that leads to death, and negligent conduct or fatalities that occur in other jurisdictions. The Government also announced a $10 million package to increase WorkSafe Victoria's ability to investigate and prosecute workplace manslaughter offences, and plans to crack down on employers that attempt to cover up safety failings after a fatality.
The laws passed the Legislative Council at almost midnight with the support of MLCs Rodney Barton (Transport Matters Party), Jeff Bourman (Shooters, Fishers and Farmers Party), Dr Catherine Cumming (Independent), Clifford Hayes (Sustainable Australia), Andy Meddick (Animal Justice Party), Fiona Patten (Fiona Patten's Reason Party) and Dr Samantha Ratnam (Victorian Greens). We thank these cross-benchers for listening to the families of workers killed at work and union member who met with them to discuss the importance of these laws.
Minister for Workplace Safety Jill Hennessy said, “We promised we’d make workplace manslaughter a criminal offence and that’s exactly what we’ve done – because there is nothing more important than every worker coming home safe every day.”
VTHC Secretary, Luke Hilakari, said:
"Workplace manslaughter is now law in Victoria.
This legislation shouldn’t be necessary. We shouldn’t need to say to a boss that the most important thing is to see our family and friends return home at the end of the day. That our loved one’s safety is more important than any business’ bottom line.
But we do and now parliament has.
This legislation exists because of the workers who went to work and didn’t come home. In the face of grief and pain, their families have been fighting for justice. Unionists and families have been campaigning for this for decades, so that no one else would have to experience this workplace carnage.
For too long if a worker was killed at work, the person responsible got a slap on the wrist. Not anymore. Workplace manslaughter laws mean that if you kill a worker, you’ll go to jail.
It is the bravery and determination of grieving families and campaigners that has seen this bill pass into law in Victoria.
Daniel Andrews, Jill Hennessy and Natalie Hutchins showed the leadership to put this legislation in the parliament and their work will not be forgotten by our movement. To those progressives in the council who voted it up tonight, you have a thanks and solidarity.
Today we remembered the dead and we fought like hell for the living."
Sources: OHSAlert; Government media release; Luke Hilakari FB page
And in other IM related news:
- After being flagged in the State budget more than seven years ago, Western Australia last week introduced a mirror WHS Bill, which includes a two-level industrial manslaughter offence and a new duty of care for "WHS service providers". Currently the state has in place the Occupational Safety and Health Act 1984
- In the Northern Territory industrial manslaughter laws have passed Parliament.
Three Victorian workers killed in just one week
In tragic news, there were three Victorian workers killed in just one week.
A 37-year-old worker suffered an electric shock and fell at a St Leonards property last Monday, November 25. WorkSafe understands the man was standing on the top deck of scaffolding at a home being renovated when he came into contact with overhead power lines. He suffered serious injuries and died in hospital on Saturday.
Also the result of an incident on the same day, a 73-year-old Mulgrave man died in hospital, after he was crushed between a car door and an automatic car wash machine in Melbourne’s east. It is believed he was attempting to get back into his vehicle after re-entering the car wash access code, when the wash cycle started and he was pinned by the car door.
The last fatality occurred on Saturday, when a contractor working as a bulldozer spotter for the Department of Environment, Land, Water and Planning in East Gippsland was killed after the vehicle he was driving rolled down an embankment. The 69-year-old man was working on a private property in Gelantipy, north of Buchan. He died at the scene. The firefighter, who was a local, was part of a team using heavy machinery such as bulldozers to clear earth breaks, which firefighters then use to burn fire fuel in bushfire-affected areas. The coroner will investigate the death.
WorkSafe is investigating all three fatalities. The latest fatalities bring the number of Victorian workers killed this year to 32. Note that the official number according to WorkSafe is 23.
Delacombe double fatality committal hearing
The committal hearing over the deadly Delacombe trenching incident of March 2018 in which Charlie Howkins, 34, and Jack Brownlee, 21, were killed, began in the Ballarat magistrates court yesterday. The hearing is expected to continued for the rest of the week. The court heard that appropriate safety measures were not used to protect workers from being buried alive. Ballarat-based construction company Pipecon, the men's emploeyr, is fighting charges related to the double workplace fatality in March, 2018. WorkSafe charged the company with two counts of allegedly contravening Section 21 of the Occupational Health and Safety Act on January 9.
Prosecuting barrister Andrew Palmer QC, acting on behalf of Worksafe, said trenching and pipe laying occurred without using appropriate safety measures to protect workers from the risk of engulfment and failing to provide appropriate supervision. "The first charge is about the system of work... and the second charge is about supervision - it is alleged supervision should have been as such they were not engaging in trench and pipe laying works without supervision in place," he said.
In his opening arguments, defence barrister Stephen Russell told the court Pipecon disagreed with the allegations trenching work was undertaken without safe measures and supervision in place. "There was a safe work statement signed," he said. "Pipecon indicate at all times trenching work was conducted in a safe manner."
Read more: The Courier
My supervisor at work has barred us from being in any room in the building by ourselves 'in case someone has a heart attack or something'. We cannot even walk into the maintenance room to get our high vis vest alone, we must be accompanied by someone. Is this legal?
What a ridiculous 'rule'!
Working alone is not specifically covered under any OHS law, so it's neither 'legal' nor 'illegal' to work alone, nor to have rules in place addressing this. However, working alone can be a serious risk to workers' health or safety in some circumstances. So while employers are right to look at some sort of policy and procedure to have in place at the workplace to ensure that the health and safety risks to workers, what your supervisor is saying (or if that’s actually the policy at the workplace) is taking it too far and is, as I said, ridiculous.
There would be an increased risk if workers were to be working alone for long periods, or if there were no way to check on them, or if they were entering hazardous environments on their own (in fact there are regulations which put very specific duties on employers if an employee is going to enter/work in what the regs define as a ‘confined space’). However barring anyone from being alone in any room at the workplace for any length of time does not make sense.
Take a look at this page on Working Alone.
If you have any OHS related queries, then send them in via our Ask Renata facility on the website.
McDonald’s staff ordered to work despite bushfire warning
A McDonald’s in NSW restaurant is under investigation by SafeWorkNSW following reports that staff were ordered to keep working despite being told by fire authorities to evacuate because of deadly bushfires. On Friday 8 November, when multiple suburbs in Port Macquarie were under threat due to the bushfires, McDonald’s workers at the highway branch were instructed to keep working.
Staff at the McDonald’s Port Macquarie Highway branch had received geo-located emergency text warnings via their mobile phones from the Rural Fire Service on Thursday night and again on Friday afternoon, informing them there were “multiple fires” in the region and they needed to “seek shelter”. However, management at the restaurant told staff to continue their shifts, despite the adjacent fast-food chains KFC, Subway and Oliver’s all shutting their doors so staff could evacuate.
The Retail and Fast Food Workers Union (RFFWU) said workers at Port Macquarie Highway branch received the SMS text emergency messages at the restaurant on two separate occasions during the devastating fires. Staff eventually took it upon themselves to leave. “The SMS was very clear and it described an imminent threat, but workers were told that it was not a real risk and they had to stay at work and keep working,” said union secretary Josh Cullinhan. “And obviously the staff were very upset and agitated by that.” He added: “What we are demanding is that McDonald's simply assure every staff member working at a McDonald's that if there is a risk in relation to bushfires that they are allowed to leave to go home, and they are allowed to not try to attend work against the advice and directions of the fire authorities.” The state safety regulator Safework NSW said it is investigating the incident.
Read more: Yahoo News Australia. Nine News.
WorkSafe Victoria releases interactive tool
As part of Asbestos Awareness Week, WorkSafe Victoria last week released an interactive to help people identify where asbestos might lurk. Those using the tool will also be able to discover how to safely dispose of asbestos. Check out the tool here: Find and Identify Asbestos.
SA: Asbestos remained 'in situ' for 20 years
The Advertiser last week reported that asbestos was left in a Rundle Mall department store for 20 years after the State Government warned it posed a danger to public safety. Former Rundle Mall retail workers who developed fatal illnesses from being exposed to asbestos have been awarded large amounts of compensation by courts. In the most recent finding, the Full Court of the Supreme Court this month ordered a contractor which sprayed blue asbestos in the 1960s to pay most of $435,000 awarded to a former display artist at David Jones who died in 2008. Bradford Insulation (BI) Contracting Pty Ltd unsuccessfully appealed against an order by the District Court to pay 75 per cent after it found the company failed to warn David Jones about the dangers of asbestos.
In his findings, District Court Judge Brian Gilchrist said David Jones had been told by the State Government in the late 1970s that blue asbestos sprayed by Bradford Insulation in the early 1960s posed a risk to public safety. He said the Health Commission wrote to David Jones in November, 1977, about air sampling it had conducted within the store which detected asbestos. It also had tested asbestos taken from a exposed steel beam which “showed it consisted almost entirely of crocilodite”. Source: The Adelaide Advertiser
ASEA to expand role
A review of the Asbestos Safety and Eradication Agency (ASEA) has recommended a broadening of the Agency’s activities in its watchdog efforts. The review, which was tabled in Parliament last week, is a statutory requirement under the Asbestos Safety and Eradication Agency Act 2013 and was conducted by an independent consultant, Julia Collins.
Attorney-General, Christian Porter said the ASEA was established on 1 July 2013 to coordinate, monitor and report on the implementation of the National Strategic Plan for Asbestos Awareness and Management (NSP). “The review examined ASEA’s statutory role and functions, including its role in implementing the NSP, in light of future challenges in dealing with Australia’s asbestos legacy,” Mr Porter said. “The review found that ASEA has been successful in providing a strong national and international focus on asbestos issues by bringing together stakeholders, sharing information, encouraging collaboration and building knowledge and capability.” Read more: PSNews
Canada: city called 'Asbestos' searches for less toxic name
The City of Asbestos in Quebec, Canada, announced last week that it will change its name because, according to a news release, the negative connotation is hindering its ability to develop economic relationships abroad. Another reason given is that it wants to be more sensitive to those affected by the toxic substance. The city grew from the development of Canada's largest asbestos mine around a large deposit of the substance discovered there in 1897. For decades, the town thrived on asbestos mining and product manufacturing.
The city will begin a selection process the choose a new name which it says will be transparent and inclusive of citizens. The town’s residents have mixed reactions about the announcement. Some town residents are enraged, and argue against the change, saying that it disregarded the city’s history; while others support it. "As citizens are the ambassadors of a municipality and are the representatives of its vitality, it was obvious that the public would be involved in the process and the choice of the new name," Mayor of Asbestos Hugues Grimard said. Read more: The New York Daily News; 9News
UK: Concern over ongoing asbestos timebomb
Asbestos-related cancers are claiming 2,500 lives a year in Great Britain despite expert predictions the death toll would peak several years ago. A leading asbestos lawyer has now warned an increasing number of non-industrial workers including teachers, nurses and office staff are becoming victims. Louise Larkin of Thompsons Solicitors was commenting on the disturbing trend ahead of this year’s 20th anniversary of the banning of asbestos in Britain. Since the ban took effect, her law firm has won £563m in compensation for more than 7,000 victims of the deadly killer dust, she said. She added a demographic change has seen asbestos harm more “young women who came into contact with asbestos in hospitals and schools in the 1970s and 80s. Traditionally, it was workers in heavy industry who developed the disease.”
The latest figures published by the Health and Safety Executive (HSE) confirmed that deaths are yet to peak and around 2,500 people continue to die from mesothelioma each year. The figures are expected to peak in 2020, but previous predictions have suggested a peak in 2012, 2016 and 2018. There were 2,087 male mesothelioma deaths in 2017, a slight reduction compared with recent years, and 439 female deaths, a slight increase. However, mesothelioma deaths constitute no more than half the cancer deaths related to asbestos each year, with related lung cancers alone thought to cause at least as many deaths. Read more: Daily Mirror. Sunday Post. Source: Risks 925
More information on Asbestos: In the Workplace and In the Home.
International Union News
UK: Unions welcome London’s ban on ‘unfit’ Uber
Uber will not be granted a new licence to operate in London after repeated safety failures, Transport for London (TfL) has said. In a decision welcomed by UK's unions, the regulator said the taxi app was not “fit and proper” to be a licence holder, despite having made a number of positive changes to its operations. Uber initially lost its licence in 2017 but was granted two extensions, the most recent of which has just expired.
The firm said it will appeal and can continue to operate during that process. Welcoming the TfL decision, a regional officer with the union GMB, said: “As a result of sustained pressure from drivers and the public, Uber has suffered yet another defeat – losing its licence to operate in London.”
In December 2018, GMB secured a major legal victory when the Supreme Court ruled tens of thousands of drivers working for the cab firm were employees entitled to the minimum wage, holiday pay, sick pay and other employment rights. Jim Kelly, chair of Unite’s London and Eastern cab section, also welcomed the TfL decision “as there remains fundamental problems in the way the company operates, particularly issues around passenger safety.” He added: “All the taxi trade wants is a level playing field. Uber’s DNA is about driving down standards and creating a race to the bottom which is not in the best interests of professional drivers or customers.” Kelly said: “In order to protect the public and to ensure standards are maintained it is essential that TfL follows this decision with stricter licencing of private hire operators and apps. This is the only way that public safety and confidence in the service can be maintained and the pay and conditions of professional drivers can be preserved.”
Read more: TfL news release. Unite news release. GMB news release. BBC News Online. Source: Risks 925.