Workplace Health & Safety - Are There Double Standards ?
The world of work health and safety in Australia has been in the spotlight recently, and for good reasons.
Whereas in most states, a workplace accident or death in the private sector is dealt with under the various state WHS or OHS Acts, with great accountability; similar unfortunate events occurring under the auspices of government officials, like COVID, do not normally attract the same penalties. The Crown (government) usually pays for the damages for any failure to properly discharge obligations in public office unless there is clear proof that the public servant didn’t care about the consequences.
The Victorian parliament passed legislation in November 2019 with the Workplace Manslaughter law (part of their OHS Act), which aimed to jail company directors for deaths in the workplace irrespective of their responsibility or control. This legislation, in its current form does not preclude the Premier, ministers and departmental secretaries from liability. Some of Australia’s prominent OHS lawyers have reviewed the findings of the Coate Inquiry*. The result is that they concluded that several ministers, public servants, the state of Victoria, some government departments and the Trades Hall Council could be prosecuted.
There are criminal offences under the sections of Victoria’s OHS Act 2004. These include failure of employers (including the government), to provide and maintain safe systems of work; failure to provide information, instruction, training and supervision for the safety of employees, failure to monitor the conditions of the workplace, and more. (ref: Section 21, Victorian OHS Act 2004)
“There is no doubt that the Victorian government owes a duty of care to all Victorians to implement effective biosecurity arrangements. A duty of care is breached when there is a failure to take reasonable steps to avoid harm that was reasonably foreseeable.”
“On the evidence to date, it is perhaps the most egregious mistake ever by a state government, and the suffering inflicted on Victorians by their government’s negligence is prodigious.” – Mirko Bagaric, Dean Swinburne Law School
In criminal matters like this the defense of “I don’t know” is not usually acceptable. It is when there were no systems of safety and where clear responsibility was not shown, that requires prosecution. There will be much to be investigated by WorkSafe Victoria and the Director of Public Prosecutions in Victoria.
The COVID disaster in Victoria has got to be the most serious OHS incident in Australian history, and it is important that lessons are learnt from it. The responsibility that executives have for human lives in the workplace, whether in the public or private sector cannot be easily dismissed and it is crucial that due diligence and appropriate risk management occurs in the operation of any workplace. Those who have a duty under health and safety laws in Australia obviously need to know what their health and safety duty is, how to satisfy that duty, and to take all necessary steps to achieve health and safety.
*Coate Inquiry is a Board of Inquiry established by the Victorian Government to investigate the handling of the COVID-19 Hotel Quarantine in Victoria.
For more information on the Victorian situation you can find recent excellent articles written by Robert Gottliebsen in The Australian newspaper.
6th October 2020