Mr GRIMLEY (Western Victoria) (17:15): I rise to speak on the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019, which if legislated will come into effect on 1 July 2020. It will apply to companies and small businesses as well as the government sector and other corporations. I also note that WorkSafe Victoria will be given added powers to investigate the new offence. As a crossbencher, and a relatively new one at that, it is challenging to form a voting position on every single bill. The crossbench is elected on a relatively small platform of policies, whether it be law and order, sustainability or transport, yet we have to form a voting position on all matters. There have been a number of bills which have been very hard to form a voting position on and this workplace manslaughter bill is no exception. Like most of my crossbench colleagues, I have received intense lobbying from both sides of the argument. They have been as equally informed and passionate as the other; however, ultimately Derryn Hinch’s Justice Party will be opposing this bill as it stands.
The safety of workers should be a priority for all governments at all levels. This bill aims to achieve greater workplace safety, but I fear that it may inspire unintended consequences. Make no mistake, Derryn Hinch’s Justice Party believes that any workplace death is one too many. Workplace safety is fundamentally a justice issue, and there is an obvious need for a penalty which specifically relates to workplace manslaughter; however, there are obvious concerns about this bill. I do echo the comments of Mr Jennings in acknowledging the boots and shoes on the steps of Parliament today. They must be remembered today, tomorrow and in the future. At the bill’s core is the exclusion of workers from any potential charges or new offences. I believe this is a concern. If your family member or friend is killed on a worksite, you want the person who created the unsafe work environment or acted recklessly to be charged, regardless of whether they are the employer or the employee. I agree in principle that there is a need for employers to take additional steps in order to achieve safer workplaces. Increasing housing construction, record spending on infrastructure and a growing population have placed additional pressures on industry, and I share the government’s concern that the highest standard of workplace safety should be pursued. The government states that:
The maximum 20 year term of imprisonment is consistent with other manslaughter offences. But other jurisdictions do not have a blanket penalty which only penalises some who commit these offences while excluding others. The government also argues that the maximum penalties will not necessarily be fully employed and are instead intended to act as a deterrent. While laws should act as a deterrent, the government has not taken that approach with other crimes. This year I placed a question on notice asking how many people have been imprisoned under the government’s mandatory sentencing laws which apply to all those who assault an emergency services worker. While I am yet to receive a response, it is my understanding that only one person has been imprisoned under those laws. Is it the view of the government that a single person being given six months in jail for striking a paramedic is enough of a deterrent? The government wants strong penalties to act as a deterrent for some crimes but is unwilling to strengthen laws for other crimes which demand strengthening. The principles of law should be applied equally. Greater workplace training and additional health and safety regulations are needed in some industries to create safer conditions. When introducing the bill, the Attorney-General stated that:
… up to 30 people are killed at work in Victoria every year. This is simply not good enough. However, in some of these cases there is ongoing debate about whether worker or employer negligence is to blame for these casualties. It is likely that there are times when both are responsible to a varying degree, but this bill only prosecutes one and not the other. I totally agree that a negligent employer must be held accountable and feel the full force of the law.
I know that this bill excludes volunteers from any potential charges, whether they be monetary or a term of imprisonment. The explanatory memorandum states that:
Volunteers are excluded from both offences, so that people are not discouraged from volunteering. This point is understandable, but I still have concerns in the case of not-for-profit organisations—some of which exist in the construction industry. Despite a person’s status as an employee or volunteer, if they create an unsafe workplace, then the law should be applied equally. Similar legislation exists in Queensland and the ACT, and it captures volunteers within the act. As a member of Parliament who represents a regional electorate, I must also consider specific instances where this bill may be applied. Of course we hope that there are no more deaths while people are at work; however, this bill will come into effect next year if legislated, and its employment must be fully considered. Many people in Western Victoria work or live on a farm, and this is a great thing; the importance of farming for local communities and the wider economy cannot be overstated. Farmers have enough to worry about, given competitive market conditions and unpredictable weather cycles. I do fear that the passage of this bill will place additional pressures on farmers. Of 146 workplace deaths in Victoria since the start of 2014, 37 fatalities have occurred on farms. This is a terrible statistic. In many cases the farming business and the house are located on the same property. In one potential example, a family may live on a farm, the husband may be the owner or director of the business and the rest of the family may be casually employed by the business. If the worst happens and a member of that family passes away on that farm as a result of a workplace accident, will the husband, wife or another family member be prosecuted? Will the deceased person really want their family member to face up to 20 years imprisonment?
If a family member is killed while working in a family run business, I believe that family has already suffered enough loss, and it would not be appropriate or in the public interest to prosecute another family member for workplace manslaughter, given the accidental nature of the incident. In my view it is not fair that while mourning the loss of a family member, farming families may be exposed to a long, draining and expensive legal process. I note that the Victorian Farmers Federation and other industry representatives have stated that the use of prosecutorial discretion, which is upheld in this bill for such cases, is not sufficient to deal with these scenarios. On a similar thread, similar arguments can be made for the potential implications this bill may have on other small businesses. Increased employee insurance costs for businesses with no track record of providing poor workplace conditions could also be indirectly impacted by this bill, which carries a maximum monetary fine of $16.5 million. Of course, you cannot put a price on worker safety or, more importantly, a life, but it should be noted that this is another potential unintended consequence.
One potential way of avoiding disproportionate consequences for small businesses is to potentially index the maximum monetary penalty outlined in this bill to annual turnover for a small business. Progressive penalties are applied in a number of other laws, and I believe it should be a relevant consideration for this bill. In addition to the above, due to the organisational liability provision in the bill the proposed offences have the potential to disproportionately impact small businesses, especially family businesses. These businesses have limited resources to defend themselves from prosecution, and the experience of those in the UK, where similar laws exist, has meant that when small businesses are prosecuted for workplace manslaughter they often plead guilty. This plea may not necessarily indicate actual guilt, but due to a lack of resources and an inability to fund legal expenses they are left with little other option. I also note the work of Victoria Police, who investigate instances of misconduct and poor occupational health and safety on worksites. While this bill grants additional powers to WorkSafe Victoria, there is a greater need for industry bodies and police to work together to provide safer conditions for workers.
The training that Victoria Police receive in terms of investigation skills is vital in determining the factors which lead to an individual’s death. I worry that current training and resourcing for WorkSafe employees is inadequate if they are to be the lead body which manages workplace safety and investigates instances of industrial manslaughter. There are also a number of other concerns that I hold about this bill, including the implications for employers when an employee commits suicide in a workplace; the implications for departmental secretaries, members of Parliament and ministers if a member of the public service dies while at work; and the implications for employers when an employee acts recklessly on a worksite while under the influence of drugs or alcohol. None of the above are fringe examples; instead they are real and relevant points which demand greater consideration. I am sure that debate on this bill will continue to be passionate, and I will continue to listen to all points made and consider all amendments to the bill. I know that the government had the right intention when drafting the bill, but I hope it can be amended in a way which takes into account potential implications for small businesses, farmers and members of rural and regional Victoria.