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WA Election 2017

Labor’s Work Safety Policy—Significant Concerns

20 January 2017


The Western Australian election will be held on 11 March 2017.

Independent Contractors Australia has major concerns with Labor’s work safety policy. We see this as a significant threat to small business people in particular. Here are our reasons.

On our assessment, the McGowan Labor opposition plans to introduce discredited, failed ‘corporate manslaughter’ laws in WA if they win the March election. We base this assessment on the WA Labor official policy platform.
 

The Labor policy says

  • Work Health and Safety legislation must provide a range of sanctions to reflect the range of exposures to hazards, illness, disease and death experienced by workers; [Section 188d]
ICA Comment:
  • The existing WA Work Safety laws already do this.

Labor policy says—jail without safeguards

  • An appropriate sanction for breach of WHS law should include a jail term for seniors officers of a PCBU; [Person Conducting a Business or Undertaking]
  • Maximum terms, reflecting the seriousness of the breach, should be 20 years;
  • Legislation must ensure that jail is a reasonable and foreseeable prospect for serious breaches of WHS duty; [Sections 188e-g]
ICA Comment:
  • Existing WA criminal law already allows for imprisonment for some serious WHS breaches. In such cases, appropriate proof to criminal standards must be met.
  • WA Labor wants to introduce new measures for jailing that have already proven a failure. They also breach human rights. Other state Labor governments have tried this approach under their ‘corporate manslaughter’ laws and have either rejected the approach or had the courts reject the approach (see below).
  • Labor’s policy threatens every small business operator.
  • Persons facing a possible jail term must have the normal protections that exist under the criminal justice system. On past experience, Labor would override this.

Labor policy says—let unions run the prosecutions

  • Where a regulator fails to initiate a prosecution, a union or another party with an interest must have a right to initiate a prosecution. [Section 188i]
ICA Comment:
  • Labor would empower unions to send people to jail without the protections of the criminal justice system.


Here’s the history of the failed, unjust industrial manslaughter laws

  • 2000: The NSW Labor government introduced WHS manslaughter laws which led to clear injustices against blameless people (see example below).
  • 2002: The Victorian Labor government introduced a WHS manslaughter Bill. This created community uproar. The Labor government conducted an inquiry that recommended against the Bill.
  • 2004: The Victorian Labor government rejected OHS manslaughter laws and instead passed new Work Safety laws similar to Western Australia’s Work Safety Laws.
  • 2010: The High Court rejected the NSW WHS manslaughter laws, declaring the laws beyond the constitutional mandate. This threw 10 years of NSW WHS prosecution into chaos.
  • 2011: The new Liberal NSW government repealed the Labor OHS manslaughter laws and introduced new WHS legislation consistent with the principles of WA’s WHS laws.
  • 2011: The Federal Gillard Labor government introduced new ‘harmonised’ national WHS laws consistent with the principles of WA’s WHS laws. Queensland, NT, SA and Tasmania adopted the new national laws. WA, Victoria and NSW retained their own laws because they were already consistent with WHS principles.
McGowan’s WA Labor is proposing is to bring in WHS manslaughter laws that have a track record of failure; laws rejected by all other states and the Commonwealth.

Examples of the harm of WA Labor's WHS Manslaughter model

a) Under the 2000 NSW Labor WHS manslaughter laws, a plumber was convicted following the death of an elderly women from hot water scalding. A hot water control valve failed thereby scalding the women. The plumber who installed the valve was prosecuted. The judge declared that the plumber did nothing wrong. A malfunction inside the sealed valve was the cause. Yet the judge said he had to convict the blameless plumber because the wording of the NSW legislation required conviction.

b) In its rejection of the NSW WHS manslaughter laws, the High Court said (in the ‘Kirk’ case): “…the actual hearing was not conducted within jurisdiction …” and  “…the cumulative effect on the appellants is oppressive.” Further that the NSW Workcover Authority should “…finish its sport with Mr Kirk".
Mr Kirk was a small businessman who owned a small farm.

The international principles of Work Safety laws

The international principles guiding global Work Safety laws are known as the Roben principles, founded on a major UK report in the 1960s and endorsed by the International Labour Organization. Australia is a signatory to these principles.

The Robens principles hold that everyone in the work situation is responsible for work safety according to what they can reasonably and practically control.

All Australian state and federal work safety laws adhere to, and are modelled on, these principles—including the current WA Work Safety laws. These are sensible, practical principles that maximize responsibility for work safety in all workplaces.

The McGowan Labor policy would break from these international principles, focusing instead on prosecuting and jailing ‘bosses’. That is, McGowan wants union-inspired class warfare in WA workplaces. The history of this sort of regime elsewhere in Australia is that it creates gross unfairness and injustice that hits small business people harder than anyone else.

The existing WA Work Safety Laws—Protected

  • The WA Work Safety laws comply with the international principles where everyone in the workplace is responsible for safety.
  • During the 2011 push for national ‘harmonisation’ the WA Barnett government stood by the existing WA legislation giving continuity to the WA laws.
  • In 2014 the Barnett government conducted a review and floated a new WHS discussion Bill. After community feedback and discussion, the Barnett government concluded that the existing Work Safety Act is doing the right job for the people of WA. Everyone is held responsible for work safety. That’s how it should be. 
Correction note

If our assessment above is not accurate, we would appreciate information from the McGowan Labor opposition as to its policy. We need a total commitment from McGowan’s Labor that it will not introduce tried-and-failed corporate manslaughter laws.

 



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