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Bills Digest no. 131 2004–05
Occupational Health and Safety (Commonwealth Employment) Amendment
(Promoting Safer Workplaces) Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Legislative History of the Bill
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Occupational
Health and Safety (Commonwealth Employment) Amendment (Promoting Safer
Workplaces) Bill 2005
Date Introduced:
9 March 2005
House: House
of Representatives
Portfolio: Employment and Workplace Relations
Commencement: This Act
commences on the day on which it receives the Royal Assent
The Occupational Health and Safety
(Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill
2005 (2005 Bill) will exempt Commonwealth employers and employees from
the current Australian Capital Territory (ACT) industrial manslaughter
laws and any other similar legislation introduced by any other Australian
State or Territory.
The Commonwealth introduced the Occupational Health
and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces)
Bill 2004 (the lapsed 2004 Bill) to counter the ACT’s industrial manslaughter
laws and to pre-empt similar moves in other jurisdictions.(1)
However, due to the prorogation of the 40th Parliament on
29 August 2004, that bill lapsed. The 2005 Bill has been reintroduced
into Parliament. The only substantial change was with respect to the
retrospective commencement of the immunity to be provided by the amendment.
The lapsed 2004 Bill provided for a retrospective operation of the immunity
commencing 1 April 2004, leaving a gap of one month in which the immunity
would have not been available. The 2005 Bill has been changed to bridge
this gap, providing that the provision operates retrospectively from
1 March 2004.
On 1 March 2004, the Crimes (Industrial Manslaughter)
Amendment Act 2003 (the IM Act) came into force in the ACT. The
IM Act introduced the specific crime of industrial manslaughter into
the Crimes Act 1900 (ACT) and is applicable to all employers,
employees, independent contractors, outworkers, apprentices, and trainees
or volunteers working within the ACT. In addition, the Act also includes
a senior officers offence, which provides that senior officers can be
prosecuted where it is proven that their negligence or recklessness
led to the death of an employee under their supervision.
The Act was just one of a broader range of measures
introduced by the ACT Government to improve workplace safety and increase
penalties for negligent and reckless acts within the workplace that
result in a death. Other measures included:
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the launch of an annual health and safety month in August 2004,(2)
-
the Dangerous Substances Act 2004 which brings the ACT into
line with national standards on the regulation of dangerous goods
and hazardous substances,(3) and
-
the Occupational Health and Safety Amendment Act 2004 which
improves compliance and enforcement measures for health and safety
within ACT workplaces.(4)
Victoria, New South Wales, Queensland, Western Australia
and Tasmania have all considered introducing stricter penalties for
incidences of workplace death including industrial manslaughter laws,
although none of the mentioned states has introduced such laws or penalties
yet. For a thorough comparison of Occupational Health and Safety (OHS)
legislation in Australia and overseas refer to the Parliamentary Library’s
Research Brief
No. 7 of 2004-05, Workplace death and serious injury: a snapshot
of legislative developments in Australia and overseas.
The Coalition Government was not supportive of the
ACT’s moves to introduce industrial manslaughter laws, with the Federal
Workplace Relations Minister, the Hon. Kevin Andrews MP, urging the
ACT’s Chief Minster Jon Stanhope to instead focus on making improvements
to existing OHS laws.(5) Upon the introduction of the Commonwealth’s
2005 Bill, the Minister re-iterated the Government’s approach of
‘preventing workplace injuries, rather than punishment after the event’.(6)
On the 4 August 2004, a Private Senator’s Bill entitled
Criminal Code Amendment (Workplace Death and Serious Injury) Bill 2004,
was introduced into the Senate by Senator Kerry Nettle.(7)
It contained similar provisions to the IM Act which was passed in the
ACT, by amending the Commonwealth’s Criminal Code Act 1995 to
include the criminal offence of industrial manslaughter. This Bill lapsed
due to the proroguing of the 40th Parliament, but has since
been restored to the Senate’s Notice Paper.(8)
The Federal Parliamentary Labor Party has still not
made any public comment on whether it will support the present Bill.(9)
The only public statement in respect of industrial manslaughter laws
made by the Australian Labor Party remains a resolution reached at the
party’s 43rd National Conference (Conference) in 2004, with
which the Conference congratulated:
… the ACT unions and Government for the timely introduction
of industrial manslaughter legislation. Recent tragic workplace fatalities
have highlighted the need for this legislation. Conference recognises
the duty of company owners and managers in enforcing OH&S in their
enterprises. Where this duty is neglected there are currently inadequate
sanctions. Conference urges all State and Territory governments to
rectify this lack of accountability.(10)
At the time of writing, the other parties represented
at federal level have not made their position public. (11)
Union and Business divide
Amendments to OHS legislation are a contentious political
issue on both a Federal and State level. In addition, there have been
mixed reactions from unions and business groups to the introduction
of industrial manslaughter laws. A majority of unions across Australia
are generally in favour of tougher penalties for workplaces deaths,
with many supporting the introduction of specific industrial manslaughter
laws, citing the need to protect workers rights and safety whilst at
work and to actively try and lower the rates of workplace fatalities.
In contrast, many business groups have opposed the introduction of specific
criminal laws for workplace deaths, arguing that the introduction of
such laws could have a significant detrimental effect not only on the
economic growth of local business, but also upon investment by foreign
businesses.
In other Commonwealth nations, there has been a tendency
to move away from the Robens model of OHS which is presently subscribed
to in Australia. In 2003, Canada modernise its criminal code with respect
to ‘corporate criminal liability’ after a mining disaster in 1992 claimed
26 lives and a number of reports recommended that the Canadian Government
adopt this approach in order to obtain a comprehensive OHS system.(12)
The changes were made to ensure that employees can be held liable for
criminally negligent acts and omissions at the workplace.
The United Kingdom is also proposing the introduction
of ‘corporate killing’ legislation, with the British Prime Minister
Tony Blair noting in September 2004 that proposals on corporate manslaughter
legislation would be produced in the current parliamentary session.(13)
More recently, as part of the British Labor government’s 10 year plan
of workplace health and safety initiatives,(14) a Health
and Safety (Directors’ Duties) Bill [Bill 22] was introduced into the
House of Commons in January 2005. This bill pursues the purpose of placing
an obligation on directors to take responsibility for their company’s
compliance of health and safety laws, and for large corporations to
appoint a health and safety information director.(15) Other
legislative measures are to follow.
For further information on the 1972 British Robens
Report and the differing views and approaches to workplace safety refer
to Research Brief
No. 7 2004-05.
Item 1 of Schedule 1 proposes to introduce new
section 11A into the Occupational Health and Safety (Commonwealth
Employment) Act 1991 (OHS Act). If enacted, this new section will
provide an immunity to those covered by the provision from laws which
impose criminal liability in respect of a death that occurs during,
or in relation to, the person’s employment or provision of services
to another person (industrial manslaughter law).
Upon commencement, the new provision will have two
areas of application:
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first, it will apply to any State or Territory industrial manslaughter
law prescribed under a regulation under the OHS Act [new subsection
11A(1)], and
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second, it applies specifically to Part 2A of the Crimes Act 1900
(ACT), that is the industrial manslaughter law of the ACT [new
subsection 11A(2)].
New subsection 11A(3) provides that current
and future industrial manslaughter laws will have no effect to the extent
that they would impose criminal liability upon employers, employing
authorities or employees within the meaning of the OHS Act.
It remains peculiar that the scope of the immunity
afforded by the provision can be prescribed by regulation. The Bills Digest
prepared with respect to the lapsed 2004 Bill, already noted that whilst
the Bill aims at immunising against industrial manslaughter laws:
the [lapsed 2004] Bill itself does not guarantee that
its provisions would not be used to create regulations that immunise
Commonwealth agencies and employees from the general criminal offences
[such as manslaughter, murder or culpable driving].(16)
The scope of this provision is broad, covering employers,
employing authorities or employees. Each of these terms is defined in
sections 5 and 9 of the OHS Act.
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‘employers’ which include the Commonwealth, Commonwealth agencies
established for a public purpose or under Commonwealth legislation
(including the Australian Competition and Consumer Commission or Comcare),
and companies incorporated in Australia in which the Commonwealth
has either a controlling or substantial interest (for example, Telstra
as long as the Commonwealth holds a substantial interest in the company).(17)
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‘employing authorities’, who are those people or bodies responsible
for employees and contractors performing work for a Commonwealth entity,
or responsible for workplaces where such work is occurring, and
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‘employees’, which, in general terms, includes employees of all Commonwealth
employers.(18)
Under new subsection 11A(3), the operation of
this new provision will be retrospective and will be taken to have commenced
on 1 March 2004, the day the IM Act commenced in the ACT.(19)
Concluding Comments
Several of the issues and main arguments for and against
of the proposed amendment have already been outlined and canvassed in
the Bills Digest
that has been prepared with respect to the lapsed 2004 Bill.(20)
The current Bill’s purpose to exempt both Commonwealth
and Commonwealth-owned corporations, employers and employees will effectively
create a two-tiered system of OHS legislation within the ACT. This fragmentation
of the workplace health and safety regime, in which different standards
apply to different entities in the same market, has been labelled inappropriate
by the ACT’s Minister for Industrial Relations, Katy Gallagher.(21)
In contrast, the Federal Minister for Employment and Workplace Relations,
the Hon. Kevin Andrews MP, stated in the second reading speech that
industrial manslaughter laws go against the main purpose of OHS regulations,
which is to prevent rather than punish.
Any model for workplace safety adopted by Governments,
both Federal and State, needs to consider a number of competing factors
in order to find a balance between continued growth of business and
the safety of Australia’s workforce. Parliament may consider that punishment
and prevention are not hostile and mutually exclusive concepts, but
may effectively be interlinked to combine prevention and deterrence
in order to create a comprehensive and even more successful approach
to workplace safety in Australia.
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For information on the provisions of this Bill refer to J. Varghese,
‘Occupational Health and Safety (Commonwealth Employment) Amendment
(Promoting Safer Workplaces) Bill 2004’, Bills Digest,
No. 135, Canberra, 2003-04.
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K. Gallagher MLA (Minister for Education and Training, Minister
for Children, Youth and Family Support, Minister for Women, Minister
for Industrial Relations), Health and Safety Month Launch,
media release, Australian Labor Party (ACT Branch), Canberra, 30
August 2004.
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K. Gallagher MLA (Minister for Education and Training, Minister
for Children, Youth and Family Support, Minister for Women, Minister
for Industrial Relations), Dangerous Substances Bill 2003,
Presentation Statement, Legislative Assembly for the Australian
Capital Territory, Canberra, 11 December 2003.
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K. Gallagher MLA (Minister for Education and Training, Minister
for Children, Youth and Family Support, Minister for Women, Minister
for Industrial Relations), New Occupational Health and Safety
Laws Focus on Cooperation and Compliance, media release, Legislative
Assembly for the Australian Capital Territory, Canberra, 23 June
2004.
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E. Macdonald and S. Hanaford, ‘Plea to drop ACT Bill on industrial
manslaughter’, Canberra Times, 27 November 2003.
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The Hon. Kevin Andrews MP (Minister for Employment and Workplace
Relations and Minister Assisting the Prime Minister for the Public
Service), ‘Second reading speech: Occupational Health and Safety
(Commonwealth Employment) Amendment (Promoting Safer Workplaces)
Bill 2005’, House of Representatives, Debates, 9 March 2005,
p. 7.
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Senator Kerry Nettle, ‘Second reading speech: Criminal Code Amendment
(Workplace Death and Serious Injury) Bill 2004’, Senate, Debates,
4 August 2004, p. 25660.
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The Private Senator’s Bill was restored to the Notice Paper on
30 November 2004. Senate Bills
List, Criminal Code Amendment (Workplace Death and Serious Injury)
Bill 2004.
-
Compare with the situation in May 2004: J. Varghese, op. cit.,
p. 10.
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Australian Labor Party, National Platform and Constitution 2004,
report,
Canberra, March 2004, p. 51.
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Compare with the situation in May 2004: J. Varghese, op. cit.
-
Comprehensive coverage of the Westray Mine Disaster can be found
on the Westray Coal Mine Disaster website at http://www.littletechshoppe.com/ns1625/wraymenu.html,
accessed on 15 March 2005. The site includes Hansard debates from
the Canadian Parliament, reports about the disaster and links to
a number of other sites about the disaster.
-
The Hon. T. Blair, Prime Minister of the United Kingdom, ‘The Prime
Minister’s address to TUC Congress on Monday 13th September’,
speech, Brighton, 13 September 2004, http://www.tuc.org.uk/congress/tuc-8618-f0.cfm,
accessed on 15 March 2005.
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Department of the Environment, Transport and the Regions, Revitalising
Health and Safety Strategy Statement, paper prepared for the
United Kingdom Government, Department of the Environment, Transport
and the Regions, London, 2000, http://www.hse.gov.uk/revitalising/strategy.pdf,
accessed on 15 March 2005.
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Stephen Hepburn, ‘Health and Safety (Directors’ Duties) Bill’,
United Kingdom, House of Commons, Explanatory Notes, 12 January
2005, http://www.publications.parliament.uk/pa/cm200405/cmbills/022/en/05022x--.htm,
accessed on 15 March 2005.
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Varghese, op. cit., p. 11, including suggestions about how alternative
approaches may circumvent this problem.
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Note that Telstra, after its full privatisation would not come
within the current scope of the proposed amendment. The Commonwealth
would lose its substantial interest in Telstra as soon as
it loses the required control of more than or as many votes at a
general meeting as any other single person.
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For the details of the term ‘employee’ as used in the OHS Act,
see section 9. For further examples, see Varghese, op. cit., pp.
11-12.
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As noted under Legislative History at the beginning of this Bills
Digest, the lapsed 2004 Bill provided for a retrospective operation
of the immunity commencing 1 April 2004, leaving a gap of one month
in which the immunity would have not been available. The 2005 Bill
has been changed to bridge this gap, providing that the provision
operates retrospectively from 1 March 2004.
-
Varghese, op. cit., pp. 12-13.
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B. Doherty, ‘Blow to industrial manslaughter law’, Canberra
Times, 10 March 2005.
Kim Haines and Thomas John
17 March 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of the
public.
ISSN 1328-8091
© Commonwealth of Australia 2005
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
in any form or by any means, including information storage and retrieval
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other than by members of the Australian Parliament in the course of their
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Published by the Parliamentary Library, 2005.
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