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Responses to Questions on Notice – Inquiry Into the Work Health and Safety Bill 2019

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Responses to Questions on Notice – Inquiry Into the Work Health and Safety Bill 2019 17 July 2020 Hon Dr Sally Talbot MLC Chair, Standing Committee on Legislation Legislative Council Committee Office Parliament House 4 Harvest Terrace WEST PERTH WA 6005 Dear Dr Talbot Responses to Questions on Notice – Inquiry into the Work Health and Safety Bill 2019 The Master Builders Association Western Australia (Master Builders) thanks the Standing Committee on Legislation for the opportunity to appear at its hearing into the Inquiry into the Work Health and Safety Bill 2019 on Thursday 9 July 2020. Please find enclosed Master Builders’ responses to the relevant Questions on Notice arising from that hearing, and Supplementary Information. Should you have any queries or wish to discuss this response, please contact me. Yours sincerely Cathryn Greville Acting Executive Director Encl. Responses to Questions on Notice and Supplementary Information Attachment 1 – Coroner’s Report: Jorge Alberto Castillo-Riffo Attachment 2 – Breaches by Officials Attachment 3 – Joint Industry Group letter to the Premier Responses to Questions on Notice Question on Notice 2 – Coroner’s Report Provision of South Australian coroner’s report where the coroner commented on what would have happened if industrial manslaughter was in place – in particular with respect to defensive strategies and blame culture. 1. The relevant Coroners report is that of South Australian State Coroner Mark Frederick Johns, Inquest into death of Jorge Alberto Castillo-Riffo (2014), delivered 1 November 2018, Inquest Number 9/2018 (2071/2014).1 A copy is attached to this response at Attachment 1. 2. The extract referenced during the hearing appears at paragraphs 36.1 and 36.2 of that report, where the question of the value of criminal prosecution for fatal industrial accidents is raised. Coroner Johns commented as follows: One of the recommendations pressed upon me by the CFMEU in its submissions was that consideration should be given to the introduction of a new offence of industrial manslaughter in the WHC Act 2012 and that Inquests should be mandatory. The present case has demonstrated that the present laws relating to prosecution for workplace injuries cause defensive litigious strategies on the part of employers and regulators. To raise the stakes even higher by the introduction of an indictable offence such as manslaughter would only exacerbate those tendencies. Those tendencies are not conducive to the public exposure and bringing to light of the full facts surrounding an industrial tragedy… 3. For Master Builders, the tendency for industrial manslaughter to engender excessive legalism and a ‘blame’ culture where employers and workers focus on defending themselves rather than working cooperatively to achieve safety outcomes, is a significant reason for opposing the industrial manslaughter offences. 4. This view is held within both operational work health and safety (WHS) and legal sectors2 where there is criticism over using criminal prosecution as a tool in WHS management from the point of view that: a. There is no evidence it will produce safer outcomes; b. It unfairly and disproportionately targets small business; c. It diminishes, if not completely removes, all reasonable opportunities for learning from the incident; 1 Available online at http://www.courts.sa.gov.au/CoronersFindings/Lists/Coroners%20Findings/Attachments/776/CASTILLO- RIFFO%20Jorge%20Alberto.pdf 2 See for example, Smith, Greg, ‘Why I do not support industrial manslaughter’, 7 November 2019, Wayland Legal, https://www.waylandlegal.com.au/post/why-i-do-not-support-industrial-manslaughter; Inquest into death of Jorge Alberto Castillo-Riffo (2014), Coroner’s report delivered 1 November 2018, Inquest Number 9/2018 (2071/2014); and Dekker, S (2010) ‘Pilots, Controllers and Mechanics on Trial: Cases Concerns and Countermeasures’, International Journal of Applied Aviation Studies, Volume 10, No 1, paras 7-8. 1 | P a g e d. It excludes the families of the victims; and e. It is a tool that can be used to avoid genuine executive liability.3 5. It is important to acknowledge that focus on prosecution and liability occurs the context of concerns regarding the process of that prosecution avenue by both the families and loved ones of victims, and by accused persons. Delays in criminal matters going to trial is not unusual, and in general there is a delay of between 3 to 5 years between a work fatality and prosecution in Australia.4 During that time, information is not available to the community to learn from and assist in improving safety. 6. The shift of focus to paper-based legal defences for incidents will, in our view, discourage reporting and proactive analysis of incidents. Neither safety improvements nor justice is served by a lack of willingness by those at fault to give a full and honest account of events following a safety incident. 7. This ‘blame culture’ is also evident in other areas of work health and safety. For example, a 2017 academic report found that safe work methods statements (SWMS) are often used for legal and corporate risk management, eroding the primary purpose as tool to ensure high risk work carried out safely.5 8. The primary purpose of WHS legislation is to create safer workplaces, not criminal punishment. Criminal punishment is only valid in the context of WHS legislation to the extent that it improves health and safety outcomes.6 9. The proposed laws are not focused on safety outcomes and fail to appreciate the critical impact positive safety culture has in workplaces across industries and occupations in improving safety. These laws are also not supported by evidence (please refer to Master Builders’ submission at 4.2, page 10 which addresses the lack of evidence in support of industrial manslaughter). Our consultations with safety experts revealed overwhelming concern that the introduction of the proposed new offences will in fact prove to be counter- productive to safety, destroying safety culture and practice and posing significant and unintentional consequences across industry and the community. 10. On the other hand, it is well acknowledged in the field that effective safety management requires a proactive, strategic approach. Master Builders fully supports proactive, practical measures which have been proven to prevent workplace injuries and deaths. These measures include training, education programs, specialist advice and support for business, inspections to identify issues early, working with the regulator to address safety concerns on an ongoing basis, and proactive prevention and enforcement strategies by WorkSafe – to identify and prosecute before a death occurs. 3 Smith, Greg, ‘Why I do not support industrial manslaughter’, 7 November 2019, Wayland Legal, https://www.waylandlegal.com.au/post/why-i-do-not-support-industrial-manslaughter 4 Matthews, Lynda R, Richard Johnstone, Michael Quinlan, Olivia Rawlings, Work Fatalities, Bereaved Families and the Enforcement of the OHS Legislation, Wau, Philip Bohle – Journal of Industrial Relations (2019) Vol 61 (5) 637-656. 5 Australian National University report, Safe work Method Statements, 21 February 2017 at page iii. 6 Smith, Greg, ‘Industrial Manslaughter debate’ Australasian Mine Safety Journal (November 2019) https://www.amsj.com.au/industrial-manslaughter-debate/ 2 | P a g e 11. As noted during the hearing, it is Master Builders’ strong view that WorkSafe must undertake proactive education, inspection and liaison functions, and its’ role in this regard cannot be understated. 12. Any legislative and policy reforms must enhance safety culture through collaboration that assesses how to best achieve positive and relevant safety outcomes. This must be at the forefront of any discussion. Master Builders submits that the proposed provisions simply do not do that. Question on Notice 4 – Section 26A of the Bill Clause 26A introduces a new duty of care for providers of workplace health and safety advice. The submission from CCIWA notes that this may place a significant regulatory burden on service providers thereby contradicting the objects of the Bill to promote the provision of advice, information, education and training in relation to work health and safety. Can you provide examples of how this would occur? 13. Master Builders considers that section 26A of the Bill is unsubstantiated, will have significant adverse impact on the provision of and access to safety services in Western Australia, and should not be introduced. It is noted that no need for this provision has been demonstrated, nor has a plausible explanation been provided for its introduction in Western Australia as a deviation from the national WHS model. General Comments 14. The Explanatory Memorandum describes the inclusion of the new duty of care for WHS service providers as intended to ensure that WHS service providers are required in the provision of their services, so far as is reasonably practicable, to ensure that the health or safety of persons is not put at risk as a result of the provision of those services. The risks may occur during the provision of the services, or sometime later, as a result of reliance on the services. 15. Specifically excluded are WHS authorities, health and safety representatives, and health and safety committees, along with emergency services and services subject to legal professional privilege. 16. Master Builders agrees with CCIWA’s comments on section 26A referred to in the Question, and notes that, in relation to the origins of this proposal: a. Section 26A does not appear in the national model Work Health and Safety Bill (Model WHS Bill), and whilst it was considered as part of the initial 2008 National Review which led to the Model WHS Bill, ultimately the recommendation was NOT endorsed by the Workplace Relations Ministers’ Council and has not been included in subsequent reviews of the Model WHS Bill. 3 | P a g e b. The recommendation had been made in the 2008 National Review itself on the basis that any additional duty of care should not be more onerous, the panel stating:7 In recommending that the model Act impose a duty of care on service providers, we note that this should not require them to do more than they ought be doing under other current laws.
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