“New proposed Work Health and Safety (Industrial Manslaughter) Amendment Bill 2015! What’s the potential issues for Businesses?

South Australia Greens MLC Tammy Franks wants employers who cause the death of a worker through negligence or indifference to face penalties of up to $1 million or 20 years in jail. These tough new changes to South Australia’s workplace safety legislation proposing to hold employers criminally liable for the death of their employees. The proposed manslaughter bill would see employers who cause the death of a worker fined up to $1 million or jailed for a maximum of 20 years.

Tammy is suggesting that numerous parties may share liability and it will be up to the courts to determine which party is responsible in the unfortunate event of a workplace death

 “Multiple parties may be on site and potentially responsible, so a court will need to ascertain where liability exists,” they say.

 The key changes under the proposed bill would be to boost the penalties for an individual who causes a workplace death from $300,000 or five years’ imprisonment, or a combination of both to 20 years’ imprisonment.

 Under the new law the penalty rate for officers or business owners would be raised from $600,000 and five years’ prison to $1 million and a sentence of 20 years.

 “A person can only be liable if they have responsibility for health and safety (decision making power), such as an Operations Manager or Health and Safety Manager,” is the way it reads. Under the bill, an employer will be guilty of an offence if he or she breaches the duty of care, knew or was recklessly indifferent that the act or omission constituting the violation would result in a substantial risk of serious harm to a person, and if the breach resulted in death.

What are the outcomes of such fearful penalties to businesses in industry? Another question that comes to my mind is, “what learnings do we really get out of penalties such as jail terms and large sums of money? In my experience and through some research, very little, if any information is published or available to public, so how do others learn from this? I felt when the Harmonisation Laws came in, the fear of jail drove most of us in safety and business management down the line of legal compliance “ass covering” from possible litigation. I also felt it compelled our safety world to go down the dictation, and blanket rule road of compliance and systems to again cover backsides. Rather than consider and focus on our people in our business we treat them like robots and give them no choices, the by-products seem to be things like, tick and flick of documents, disgruntled employees who feel worthless and not trusted or capable of making adult decisions. Is this what safety is supposed to be all about in business?

It brings to mind a time I spent in the Coal Seam Gas Industry in QLD where we were trying to manage risk of explosion during a combined construction and operations commissioning stage on a compression station. All Safety people and most managers were more worried about signing off a dispensation document to shift responsibility of risk ownership rather than mange the risk, the legal fear and doubt it drove was very real. Seeing how the fear of prosecution influenced people to think that a dispensation paper was going to make the risk all better just blew me away, I remember thinking, “this isn’t how we manage risk in business, is it”? This wasn’t the first time high risk activities in a business were driven by legal compliance and fear of heavy fines or jail, I wonder how many have actually been prosecuted through the mentality of legal compliance?    

In the Behavioural safety world, they thrive/d on this kind of legal stuff, through the fear itself they would leverage off to gain work, which I used to question. The one thing we were taught in Behaviour Science Technology (BST) was the old ABC analysis “Soon Certain Positive”, where is the soon certain positive in jail and prosecutions? I thought jail and prosecutions would be “Later Uncertain Negative”, which would mean that this is in no way going to influence or change behaviour in anyway. Over the 20 plus years I have been in the safety game I have learnt that we never stop learning and we don’t have all the answers and nor can we.

Is it perhaps that we need to re-think the idea of punishment for safety management failures and think of ways the legal system can perhaps help the industry learn from one another’s mistakes?

How can the regulators, safety legal system and Work safe and health industry help one another out with shared learnings and great ideas of innovation? would this be something that could perhaps work in our industries Safety? I remember an inspector I had the pleasure of working with in industry who was trying hard to cross-pollinate safety ideas from one company to another, what a great initiative, I just hope it spreads!

Should we be re-thinking the way we interoperate the act and reg’s and respond to it with our people people in the forefront of our mind?

Should we be refining our systems and focusing on the value add that they do or do not give our people and ask, do they really understand them? Is there too many policies and procedures, that they physically can’t remember them all because we have flooded them? Are our systems simple enough that they are mirror reflected in practice at all levels?

Should we get back to basics of empowering our people and removing blanket policies like mandatory gloves and not allowing the use of fixed blade Stanley knives? What by-products have you experienced through our Safety, rules, laws and potential prosecutions? And do they worry your business? How can our businesses become more resilient to risk, and create collective mindfulness?