MS TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:37:55): Like so many other people in the chamber today I also have a deep personal association with this issue. The first time I knew of workplace deaths, I think, was from stories that my great-grandmother and my grandmother told me about what it was like when the siren went off at the mine—how people ran to the mine to find out what was going on, whilst others stayed close to home, worried and anxious, and then of course, often, grief-stricken. I was old enough to understand what they were describing to me, and it instilled in me a strong sense of what it was that surrounded the issues of workplace deaths. Of course they go back, those stories, some 120 years, but unfortunately it is not just the stories from my great-grandmother and my grandmother that I can recall. As a union secretary for some 15 years in the vehicle industry I also witnessed a lot of workplace safety issues and a lot of injuries, and indeed as part of the wider trade union movement I saw the impact of workplace injuries and workplace deaths and the impact they had on families, workplaces and entire communities. The fact is that we still have workplace deaths. There are 136 pairs of shoes on the steps of Parliament today owned by people who have died in their workplace—they are a telling reminder that the current system is not working. We need to do more, and this is what this bill is all about. This is not a new issue. Unfortunately it is an age-old issue. It is an issue that has been brought forward by workers, their unions and families for generations. Here we are, in 2019 in a First World country with a growing economy, and it beggars belief that we still have workplace deaths. This year alone we know that there has been approximately one workplace death every fortnight. I know that the parents and friends who have lost loved ones absolutely know this. I take this opportunity to register my deep admiration for these families and friends. Some, I know, are in the gallery with us today. Nothing, of course, will bring back their loved ones. But I applaud them for seizing the opportunity and being part of a process in wanting to change workplace manslaughter laws in this state, to reduce the chance of workplace death and to make a better world. For this we will be forever grateful. Victorian workers will be grateful, families will be grateful and the next generation of workers and their families will be grateful. I would also like to acknowledge those that have fully participated in the Workplace Manslaughter Implementation Taskforce. They have done an amazing job. This bill before us today is an election commitment of this government. It has been elevated by the union movement and elevated by families to give us a greater understanding of each incident and the impact that that death has had on families, co-workers and the wider community. They have been able to keep the legacy of their loved ones alive, and hopefully that legacy will be embodied as part of the passage of this bill through this house today and into the future. I do find it difficult to understand why there is opposition to these reforms when I hear the devastating stories of workplace fatalities which have been relayed during the debate and of course leading up to this debate, because after all at the very heart of this legislation is the prevention of death. Ms Symes interjected. Ms TIERNEY: It is pretty straightforward indeed, Ms Symes. There have been some points of opposition to the bill, and briefly I will recap these points. Firstly, in relation to the assertion that employees should be covered by the new offence, the government does not agree. It must be noted once again that the new offence focuses the minds of those in charge to take responsible steps to impose the standard of care that would be reasonable in the circumstances. Presently companies cannot be prosecuted for manslaughter when a death occurs on a worksite. In addition, it is very difficult to attribute the actions of an employee to an employer, even when an employer has condoned and created a culture of unsafe work practices. Further, employees can be held liable under criminal law for manslaughter. This is because manslaughter by negligence under common law is tailored to individual liability. Simply, the bill overcomes an inconsistency in the law whereby employers and companies as well as those in charge of such organisations are not able to be prosecuted when they negligently cause the death of a worker. It would be inconsistent with the intent of these reforms for employees to be prosecuted for workplace manslaughter. It is those that set the conditions of work that need to be incentivised to adhere to the duties that they currently hold. They have the power and thus the responsibility to prevent workplace fatalities. Secondly, officer liability is perfectly appropriate and aligned with the principles of the current act. The conduct of an employee who has failed to take reasonable care and who is acting under the explicit or implied direction of an officer is to be attributed to an officer via section 144. Thirdly, employers will not be held liable for rogue employee conduct because a rogue employee would not be acting under an employer’s actual or apparent authority. Therefore their actions would not be attributed to the employer or an officer. Any exclusion is unnecessary and misunderstands the actual operation of the bill. Fourth, the test of negligence is considerably higher than merely failing to take reasonable care, which is the standard negligence test in civil cases, and is proportionate to the consequences of the offence proposed in the bill. Fifth, the government is opposed to any exemption for family farming businesses. Agricultural businesses exist in one of the most high-risk industries. Any exclusion would mean that those working for a family business would have substandard protections when it comes to workplace safety. As has been explained in the debate, prosecutorial discretion will act as an appropriate safeguard in cases where a fatality is caused by a family member. Finally, it is very important that the existing power that WorkSafe Victoria investigators have to compel the production of documents during an investigation remain unchanged. Consistent with the investigations of all other offences in the act, this power is required to adequately investigate the workplace manslaughter offences. This power is longstanding and allows for the proper functioning of the regulator. Any attempt to remove this is an attempt to undermine the workability of this important reform. The opposition, as we know, have circulated a number of amendments to the bill, which I will quickly address now. The amendments are opposed by the government in full. The explicit inclusion of ministers and departmental secretaries is opposed on the basis of legal advice that it is wholly and totally unnecessary. This amendment, we believe, is a political play. It is my understanding that the Victorian Crown counsel’s advice is consistent with the government. Ministers of the Crown are covered by this bill; there is no doubt about it. Similarly we oppose the amendment to cover employees. This amendment is opposed for the reasons I previously canvassed. The included list of factors that seek to limit liability and to prevent those accountable for decision-making from being held accountable is no more than a set of the same old excuses. The amendment is opposed. An exemption from prosecution for relatives of those killed at work when they are responsible for negligently causing that death is opposed. This amendment is unnecessary for the reasons outlined earlier in terms of the way police and judges would work that in a practical way. Amendments to remove the power of inspectors to compel the production of documents in any investigation is also opposed. This amendment is the most insidious and threatens not only workplace manslaughter but also the entire occupational health and safety system. In terms of the amendment that deals with the long title of the bill, this amendment is also opposed. The Liberal Democrats have also moved an amendment regarding sole traders and small businesses. We oppose this amendment on the basis that it lets small businesses and traders off the hook for health and safety breaches. Health and safety matters in every context—big business and small business. All workers deserve a safe workplace. I take this opportunity to again thank everyone involved in getting this bill to the house today. The families, the advocates, the trade union movement, Victorian Trades Hall Council and regional trades and labour councils, policy reformers and all the leaders who know that sometimes you just need to push through and get the job done when the current situation just simply is not good enough. In this case the issue is about workplace safety, it is about prevention, it is about saving lives and it is about zero tolerance of workplace death. I commend the bill to the house.
Tags: Second Reading