There is no quick fix or single solution to the problem of work-related deaths. A package of reforms is needed, including amendments to WHS laws, improvements to regulator practices, reforms to tackle corporate phoenixing and a review of government licensing and procurement rules.
The ACTU’s key concerns with the current WHS framework are as follows:
• Inadequate penalty regime:
o The maximum penalties in WHS Model Laws are too low, for example when compared with those applicable for corporate crime;
o Courts frequently award penalties lower than the available maximum, even for the most serious breaches causing death;
o The ability of companies to insure against WHS penalties and ‘phoenix’ to avoid fines further undermines the effectiveness of penalties.
• Inadequate national enforcement, monitoring and compliance strategy by regulators – particularly in relation to non-standard workplaces and cross-border incidents. The balance between education/encouragement and hard enforcement activity is not appropriate to prevent workplace injury and death. An urgent review is needed.
• Inadequate consultation and participation mechanisms for workers and unions, particularly in insecure and precarious work environments.
• Under-reporting and inadequate data collection, which impedes effective early intervention and prevention measures by regulators and social partners.
• Inadequate legal mechanisms:
o Unions should be authorised to commence both civil and criminal prosecutions for WHS breaches;
o A partial reverse onus of proof should be introduced, by removing the ‘so far as reasonably practicable’ qualifier from the primary duty of care and relocating it as a defence, with the onus on the defendant to prove that reasonably practicable steps have been taken;
o A new offence of corporate manslaughter should be introduced;
o Amendments should be made to strengthen officers’ duties, including changing the definition of ‘officer’ to ensure those responsible for WHS breaches are covered;
o The standard for a Category 1 offence should include ‘negligence’ as well as recklessness;
o WHS disputes should only be heard by courts and tribunals with expertise in WHS and industrial matters;
o Sentencing guidelines should be developed in order to ensure consistent and appropriate sentencing for serious WHS breaches across jurisdictions.
Reform to address these problems with the WHS regime must be complemented by reforms in other areas to hold corporations accountable for reckless or negligent practices that cause work-related deaths, including:
• Reforms to Corporations Law to limit the ability of companies to liquidate to avoid WHS penalties, and to hold officers who engage in these practices to account;
• Government licensing and procurement consequences for corporations who repeatedly breach their WHS obligations.