Chapter 3

Background

3.1
This chapter provides background information on the rate of industrial deaths in Australia, the current work health and safety (WHS) legislative framework in place, and the safety implications of the increased use of temporary and labour hire workers.

Rate of industrial deaths in Australia

3.2
Safe Work Australia (SWA) compiles several data sets that provide information on the number and circumstances of work-related deaths in Australia. The work-related traumatic injury fatalities data provides statistics about individuals who die each year from injuries caused by work-related injuries. The data include fatalities that result from an injury sustained in the course of a work activity (i.e. worker fatality) and as a result of someone else's work activity (i.e. bystander fatality).1
3.3
The scope of the data set includes individuals:
who were fatally injured;
whose injuries resulted from work activity or exposures;
whose injuries occurred in an incident that took place in Australian territories or territorial waters.2
3.4
The data set does not include individuals who died:
of iatrogenic injuries (where the worker died due to medical intervention);
due to natural causes such as heart attacks and strokes (except where a workrelated injury was the direct cause of the heart attack or stroke);
as a result of diseases, such as cancer; and
by suicide.3
3.5
SWA informed the committee that since a peak of 310 in 2007, the number of worker fatalities fell to 182 in 2016, and that the rate has halved from 3.0 fatalities per 100,000 workers to 1.5 fatalities per 100,000 workers in 2016.4
3.6
SWA also collects year-to-date data from initial media reports to gain preliminary estimates of the number of people killed while working each year. As at 4 October 2018, preliminary data showed that 97 Australian workers had been killed at work.5 In 2017, the preliminary data showed there were 191 Australian workers killed at work, while in 2016 there were 182 killed. Once the appropriate authority has investigated the death, more accurate information becomes available which SWA then uses to update details of the incident.6
3.7
The Australian Council of Trade Unions (ACTU) raised concerns that the SWA work-related traumatic injury fatalities data set does not reflect those individuals who are killed by work-related diseases:
While the number of fatal work injuries has declined over time in most developed countries, the state of our data continues to result in an underestimation of the true extent of work-related deaths, including those arising from work-related diseases. The fact is that any death at work is unacceptable. It is unacceptable that in Australia, a wealthy and developed country, about 200 people die [per year] from traumatic work-related injuries, and a further 2,000 are killed at work by work-related illnesses such as black lung, silicosis and cancers, including those associated with exposure to diesel, welding fumes and, of course, asbestos.7
3.8
The Australian Manufacturing Workers' Union (AMWU) also raised a similar concern:
We've interpreted industrial deaths to include all work related deaths and not just traumatic fatalities. The reason we do this is that we think it's absolutely essential if we're to diminish the burden of ill health associated with poor working conditions. As a nation, we need to broaden our gaze. Using estimates from both Australia and overseas, it's not outlandish to estimate that around 4,000 Australians die each year as a result of their exposures at work. There's an absolute imperative to broaden the data used by regulators in their prevention and compliance activity. Whilst all those bodies recognise that workers' compensation data is grossly inadequate, they still persist in relying upon this unrepresentative data.8
3.9
There are particular industries which are at a higher risk for worker fatalities. SWA outlined:
In 2016, almost 70 per cent of worker fatalities occurred in just three industries – the Transport, postal and warehousing industry (47 worker fatalities), the Agriculture, forestry and fishing industry (44 worker fatalities), and the Construction industry (35 workers fatalities). In terms of rates, the Agriculture, forestry and fishing industry recorded the highest rate in 2016 of 14.0 fatalities per 100,000 workers, almost 10 times higher than the all industry average (1.5 fatalities per 100,000 workers). This was followed by the Transport, postal and warehousing industry (7.5 fatalities per 100,000 workers).9
3.10
Industrial injuries and deaths impose a significant cost on the economy, which is largely borne by workers and the community. As the ACTU stated:
The total cost of work-related injury and disease in Australia was $AU61.8 billion in 2012-13, including the cost of productivity loss, additional hours of work, insurance, loss of earnings and funeral, carer, compensation, medical, litigation and prosecution costs. Employers bear 5% of these costs, workers bear 77% and the community 18%. These figures do not include the suffering, social dislocation and economic hardship endured by the families of those affected by work-related deaths.10

Committee view

3.11
The committee acknowledges that SWA data shows a steady decline in the number and rate of industrial deaths since 2007. This is an encouraging trend but by no means a reason for complacency. As numerous submitters reminded the committee, one industrial death is one death too many.
3.12
The committee is of the view that the community should not lose sight of the deaths that occur due to occupational exposure to substances that result in industrial diseases, such as asbestosis and mesothelioma, black lung disease and silicosis.
3.13
The committee sees merit in SWA collecting data on deaths from industrial diseases to complement its work-related traumatic injury fatalities data set.

Recommendation 1

3.14
The committee recommends that Safe Work Australia expand the work-related traumatic injury fatalities data set to capture data on deaths resulting from industrial diseases.

Legislative framework

3.15
Australia has a set of model work health and safety (WHS) laws, developed in 2011 by SWA. The aim of the WHS model laws is to provide all workers in Australia with the same standard of health and safety protection, regardless of the work they do or where they work. The model WHS laws comprise the model WHS Act, model WHS Regulations, and model Codes of Practice. To date the model WHS laws have been implemented by the Commonwealth and all states and territories, apart from Victoria and Western Australia.11
3.16
The model WHS Act provides a framework to protect the health, safety and welfare of workers and is underpinned by the following aims:
to protect the health and safety of workers and other people by eliminating or minimising risks arising from work or workplaces
ensure fair and effective representation, consultation and cooperation to address and resolve health and safety issues in the workplace
encourage unions and employer organisations to take a constructive role in improving work health and safety practices
assist businesses and workers to achieve a healthier and safer working environment
promote information, education and training on work health and safety
provide effective compliance and enforcement measures, and
deliver continuous improvement and progressively higher standards of work health and safety.12
3.17
Section 19 of the model WHS Act establishes a primary duty of care which requires duty holders to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety.13
3.18
The model WHS Act provides for general functions and powers of regulators and inspectors. Numerous compliance and enforcement tools are provided for, including:
improvement notices;
prohibition notices;
non-disturbance notices;
remedial action;
injunctions;
enforceable undertakings; and
legal proceedings.14
3.19
SWA advised the committee that there are three categories of criminal offences for breaches of health and safety duties under the model WHS Act:
The maximum penalties are different depending on the category of the offence and whether the offender is a worker, an individual as PCBU [person conducting a business or undertaking] or officer, or a body corporate...
Category 1 – a duty holder, without reasonable excuse, engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness.
Category 2 – a duty holder fails to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness.
Category 3 – a duty holder fails to comply with a health and safety duty.15
3.20
It is important to note that the two most serious offences involve actions which expose a person to a risk of death or serious injury or illness, rather than those that cause the actual death of a worker. This later matter is often referred to as industrial manslaughter and is considered in detail in Chapter 5 of this report.
3.21
The penalties for breach of health and safety duty offences are as follows:
Table 3.1:  —Penalties for breach and health and safety duty offences
Type order
Corporation
Individual as PCBU or officer
Individual as worker or other
Category 1
$3 million
$600 000, five years in jail or both
$300 000, five years in jail or both
Category 2
$1.5 million
$300 000
$150 000
Category 3
$500 000
$100 000
$50 000
Source: Safe Work Australia, Submission 8, p. 6.
3.22
Chapter 5 of this report examines in more detail the use of compliance and enforcement tools and penalties for breaches of existing WHS laws which involve the death of a worker.

Committee view

3.23
Given that the model WHS laws have not been implemented in all jurisdictions and that a state or territory can also elect to amend the model laws as they apply in their own jurisdiction, the committee considers it may be worthwhile for SWA to maintain a public list of all amendments to the model laws.

Recommendation 2

3.24
The committee recommends that Safe Work Australia maintain a public list of amendments that jurisdictions make to the model work WHS laws.

Rate of prosecutions under the legislative framework

3.25
SWA publishes aggregate data provided by each jurisdiction on the number of WHS legal proceedings and the total amount of fines ordered by courts in relation to WHS breaches. A summary of the available data on compliance and enforcement activities in 2015-16 showed that there were 275 legal proceedings against duty holders finalised, 232 legal proceedings resulting in a conviction, order or agreement, and $12.2 million in fines issued by courts.16
3.26
SWA advised that it was not able to break down that data set to ascertain information on specific prosecutions, such as the level of prosecution or the fines produced, but noted that getting access to more granular data in that area was something it was 'looking to explore' with jurisdictions.17
3.27
The ACTU contended that the data kept by regulators on prosecutions was inadequate. It argued:
Regulators should keep a common, publicly available database of completed prosecutions, including information about the date of the prosecution, the nature of the entity prosecuted, the type of issue giving rise to the prosecution, the provision of the Model Act under which the prosecution was taken, the court in which the prosecution took place, the plea entered by the defendant, and the sentence imposed by the court. The database should also include links to all written court decisions.18

Committee view

3.28
The committee emphasises that the aforementioned SWA data in relation to compliance and enforcement activity results in 2015-16 (i.e. 275 legal proceedings against duty holders finalised, 232 legal proceedings resulting in a conviction, order or agreement, and $12.2 million in fines issued) does not reflect the prosecution outcomes for industrial deaths, which are a smaller but unquantified subset of this aggregated WHS data.
3.29
The committee is of the strong opinion that SWA must work with each jurisdiction to collect and maintain a data set with more detailed information on the prosecution processes and outcomes of industrial death incidents.
3.30
The committee also considers that it would be valuable for this information to be provided to relevant Commonwealth and State and Territory government agencies so that it can be taken into account in the awarding of public contracts. It would also inform other interactions with the Commonwealth such as applications for a self-insurance licence under the Safety, Rehabilitation and Compensation Act 1988.
3.31
The committee is of the opinion that corporations that repeatedly breach WHS obligations and cause death and serious injury should not be awarded government contracts.

Recommendation 3

3.32
The committee recommends that Safe Work Australia work with WHS regulators in each jurisdiction to collect and publish a dataset which provides annually updated and detailed information on the prosecution of industrial deaths, including:
the date of the prosecution;
the nature of the entity prosecuted;
the type of issue giving rise to the prosecution;
the provision of the legislation under which the prosecution was taken;
the plea entered by the defendant; and
the sentence imposed by the court.
3.33
The committee also recommends that this data set be provided to:
relevant Commonwealth and State and Territory government agencies so that it can be taken into account in the awarding of government contracts; and
relevant Commonwealth agencies for the purpose of applications for a self-insurance licence under the Safety, Rehabilitation and Compensation Act 1988.
3.34
The committee further recommends that corporations that repeatedly breach WHS obligations and cause death or serious injury should not be awarded Commonwealth, State or Territory government contracts.

Review of model WHS laws

3.35
SWA recently commissioned a review of the model WHS laws, led by independent reviewer Ms Marie Boland. The review commenced in November 2017 after Commonwealth, state and territory ministers with responsibility for WHS asked SWA to conduct a review of the content and operation of the laws. The review is due to be finalised by the end of 2018.19
3.36
SWA outlined the direction of the review:
The Terms of Reference for the Review focus on the operation and content of the model WHS Act, rather than assessment of the policy objective underlying harmonisation or whether model WHS laws were the appropriate mechanism for achieving this objective. The Review is also not intended to examine in detail and compare the implementation of the model WHS laws across jurisdictions, or assess the performance of the regulators.

Committee view

3.37
The committee awaits with interest the outcome of the review of the model WHS laws and urges SWA to consider the findings and recommendations of this report in its deliberations.

Recommendation 4

3.38
The committee recommends that the Boland review consider the recommendations of this inquiry in its review into the model WHS laws.

Safety implications of the increased use of temporary and labour hire workers

3.39
The committee received evidence arguing there were negative safety implications relating to the increased use of temporary and labour hire workers. Evidence indicated that workers engaged under such employment practices were more vulnerable to adverse WHS outcomes due to a number of factors.
3.40
The ACTU advised that over 40 per cent of the Australian workforce is employed in some form of precarious or insecure employment. It stated these workers were more likely to be insecure at work for a range of reasons, including:
inadequate training and induction;
fear of employer reprisal for raising safety concerns;
lack of access to participation and consultation processes;
lack of regulatory oversight;
poor supervision;
inadequate access to effective safety systems; and
exposure to frequent restructures and down-sizing.20
3.41
Maurice Blackburn Lawyers (Maurice Blackburn) commented in a similar vein:
The rise in precarious work continues to be a significant factor increasing insecurity among the workforce. This uncertainty would undoubtedly influence the behaviour of workers where they would otherwise pursue their right to WHS coverage or access support and compensation if they are injured.21
3.42
The Queensland Government submission highlighted numerous studies and reviews which raised concerns about the WHS of labour hire workers.
3.43
It summarised:
A common characteristic of temporary work and labour hire employment, however, is the precariousness of the employment relationship. It is this feature that makes both groups susceptible to poorer health and safety outcomes with some of the worst cases of exploitation of workers evident among labour hire workers. Labour hire workers are younger on average than other workers and commonly from a non-English speaking background. These characteristics compound the risk of labour hire workers being harmed or injured at work.22
3.44
The Victorian Government pointed out that labour hire workers are among those disproportionately affected by hazardous employment. It drew the committee's attention to findings from its 2016 inquiry into the labour hire industry and insecure work, which found that there were various ways in which labour hire workers were treated as a 'second class' of worker, with treatment ranging from outright exploitation to differential treatment in regard to WHS issues.23
3.45
The Northern Territory Government also expressed concern about the trend towards hiring temporary workers and using labour hire companies. It noted that the Northern Territory had had a number of cases of vulnerable workers being exploited or suffering death or injury.24
3.46
The Victorian Trades Hall Council (VTHC) emphasised that the increasing use of temporary workers poses a significant risk to Australia's WHS system:
Temporary workers, such as those on working holiday or student visas, are often amongst the most vulnerable in our society. These workers are more often than not without a voice. They are scared to report safety incidents or hazard for fear of losing their job and potentially their visa.25
3.47
The Transport Workers' Union (TWU) quoted research showing that the increasing use of temporary and labour hire work 'can and does lead to dangerous outcomes'.26
3.48
The ACTU argued that improvements were required to the model WHS Regulations and the model Codes of Practice to better assist duty-holders in complex work arrangements to understand and comply with their duties:
The current Model Laws already provide for situations where multiple businesses have overlapping duties (see s 16 of the Model Act), and the ACTU has recommended an amendment to s 19 to ensure that labour-hire and supply chain arrangements are effectively covered by the primary duty of care. In addition, the Model Codes and Regulations must be updated to better explain the scope and nature of the primary duty of care as it applies in practice to ‘non-standard’ employment arrangements, such as labour hire arrangements, contractor arrangements, supply chains, joint ventures, alliances and franchise arrangements. There will be many situations in which more than one duty-holder will have an obligation to identify hazards and control risks. It is essential that roles and responsibilities between different duty-holders are clearly understood and coordinated. These arrangements are complex and uncertainty regarding which obligations lie with which duty-holder is likely. Duty-holders should be assisted to identify the major WHS problems associated with each type of working relationship and to develop a systematic approach to managing those issues. In light of the increasing prevalence and complexity of these arrangements in the new economy, the Model Regulations and Codes must provide clear and detailed guidance explaining which categories of workers and others are owed a duty in various non-standard working arrangements, and what steps must be taken by duty-holders to ensure their health and safety. Detailed guidance on the obligation in s 46 of the Model Act on duty-holders to consult with each other, as well as workers and their representatives, must also be included.27
3.49
Industry groups disagreed with the contention that there were negative safety implications relating to the increased use of temporary and labour hire workers. For example, the Australian Industry Group (Ai Group) argued that Australia is not experiencing an increase in the level of temporary and labour hire workers.28
3.50
The Australian Chamber of Commerce and Industry (ACCI) stated:
Irrespective of the number of 'temporary' and labour hire workers nationally, SWA data shows the overall number of worker fatalities and the fatality rate across all industries has been trending down since 2007. There is limited evidence to indicate that employment type correlates to risk, once other variables are accounted for.29
3.51
Master Builders Australia refuted that there has been increased use of temporary and labour hire workers and further asserted:
It is our view that companies that employ or engage temporary and labour hire workers are aware of, and adequately administer their obligations under relevant legislative schemes that have been enacted to mitigate the potential risks.30
3.52
The Department of Jobs and Small Business (the department) also made comment on this matter:
Having regard to data from the Australian Bureau of Statistics, the department does not agree with the notion that there is an 'increased use of temporary and labour hire workers'. For example, workers paid by a labour hire firm/employment agency as a proportion of employed persons has been stable at around 2 per cent since 2008. Further, over the past 20 years the rate of casual employment has steady at around 25 per cent.
The WHS Act is clear: all workers are entitled to work in an environment where the risks to their health and safety are properly controlled. The laws require businesses to do what is reasonably practicable to ensure the health and safety of their workers. Where those workers are vulnerable (for example, because they are new to an unfamiliar workplace or job), additional steps should be taken to make them safe. That is what the law demands.31
3.53
The Recruitment, Consulting and Staffing Association (RCSA) argued that there was 'no evidence' to suggest that there has been an increase in the number of people employed under labour hire arrangements in the past twenty years.32
3.54
The RCSA also stated:
We believe that Section 46 of the Work Health and Safety Act 2011 provides sufficient specificity in relation to labour and on-hire arrangements and the sector does not require further dedicated consideration from a legislative perspective.
This position is supported by a range of work health and safety data sets, which by no means indicate that the labour hire sector is an outlier in relation to worker safety. To the contrary, they show that in most cases the labour hire sector is in line with the direct hire population and in many cases, labour hire outperforms the directly hired workforce in relation to safety.33

Toxic corporate culture

3.55
The committee heard that the rise of precarious employment practices had led to a corporate culture where there is a distinct lack of care for safety of the worker.
3.56
Maurice Blackburn detailed the situation:
Over the past two decades, business operators have continued to find new ways to avoid their responsibilities under Fair Work legislation and other legal and regulatory structure, including WHS and workers' compensation frameworks. 'Gig economy', sham contract and labour hire arrangements require the service provider to be a self-employed independent contractor, rather than an employee, thereby abrogating the business operators of employer responsibilities...
These business operators have moved the public discourse in this regard toward a discussion of 'who employs whom', rather than toward any genuine concern for the wellbeing of workers. By insisting that people who work for them be self-employed independent contractors, business operators avoid having to take responsibility for the provision of safety nets that Australians have come to expect, including the right to be safe at work.34
3.57
Ms Regan Ballantine, whose 17 year old son Wesley was killed at work in 2017, summarised the lack of care evident in such instances:
When you lose love so abruptly and so young, you come to understand that the root cause of that death wasn't really because of poor safety; it was because people didn't care—not about human life and certainly not for one another. I can tell you what the people in charge did care about though: gross profit. Are we really still there where profits are valued over and above everything else?35
3.58
Dr Lana Cormie, whose husband Charlie was killed at work in 2018, echoed a similar sentiment in her evidence to the committee:
What killed my husband?... He died because workers are not respected and they cannot stand up for what is right for fear of losing their jobs. He died because employers ask what is profitable before what is right.36

Committee view

3.59
The committee is persuaded by the evidence that there are negative safety implications relating to the increased use of temporary and labour hire workers and other forms of precarious work. Additionally, the committee agrees that the rise of such precarious employment practices has led in some instances to a corporate culture where there exists a distinct lack of care for the safety of the worker.
3.60
The committee recognises that it is important to assist duty-holders in complex or precarious work arrangements to understand and comply with their duties. It sees merit in SWA developing dedicated guidance on this topic to be incorporated into the model WHS framework.
3.61
In Chapter 5 of this report the committee also makes recommendations to improve the use of compliance and enforcement tools and penalties for breaches of WHS laws which involve the death of a worker. If adopted, these recommendations will lead to a gradual improvement in WHS practices amongst certain companies and employers where there is a corporate culture of profit over worker safety.

Recommendation 5

3.62
The committee recommends that Safe Work Australia work with Commonwealth, State and Territory governments to:
update the model WHS framework to cover precarious and non-standard working arrangements (including labour hire) to clarify the extent, scope and nature of the primary duty of care and the obligation under the model WHS Act on dutyholders to consult with each other, as well as workers and their representatives; and
pursue approval of these arrangements in other jurisdictions through the formal harmonisation of WHS laws process.


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