The workplace as a crime scene – the relationship between criminal law and OHS regulation in Victoria

Workplace Directions

In 2009 Brodie Panlock, a 19 year old waitress, committed suicide after extreme bullying by her work colleagues. The three perpetrators Nicholas Smallwood, Rhys MacAlpine and Gabriel Toomey, were convicted under the Occupational Health and Safety Act 2004 (Vic) (OHSA)[1] and fined a total of $85,000, while cafe owner Marc Luis Da Cruz and his company were ordered to pay $250,000. The high profile case led to the introduction of Brodie’s Law – Crimes Amendment (Bullying) Act 2011 on 7 July 2011, which amended Section 21A of the Crimes Act 1958 to include workplace bullying under the definition of stalking.[2] Although there is criticism that there is an ‘ill-fit’ between the use of the criminal prosecutions in OHS regulation and the stated objectives of the OHSA to eliminate or reduce OHS risks at the source, Brodie’s case – and the publicity it caused – powerfully illustrates the use of the criminal system to prosecute offences in the context of workplace injury and death.

Breach of duty under the OHSA is a criminal offence, triable on indictment. An employer will be in breach of s21(1) of OHSA if it fails to provide and maintain so far as is practicable ‘a working environment that is safe and without risks to health.’ The general duties in Part 3 of the OHSA also apply to employees, officers, those who manage or control a workplace, who conduct business that impacts other people, those who may recklessly endanger persons at a workplace, manufacturers, installers and designers.[3]

The offences created by the OHSA differ from traditional criminal law as the standard is one of absolute liability subject only to the qualifier of ‘reasonable care’. An OHS offence can be committed whether or not harm is caused, and the mere failure to provide a safe working environment constitutes the breach. An OHS offence is untypical in criminal law, as proof of a breach of duty does not depend upon proof of a relevant state of knowledge or intent (‘mens rea’).[4]

Further, it is of note that there are no statutory defences available under the OHSA[5] and the Act modifies traditional rights under criminal law against self-incrimination.[6] The significance and potentially serious implications of the use of criminal law in the OHS arena has been discussed in numerous cases, such as Kirk v Industrial Relations Commission of New South Wales,[7] R v FRH Victoria Pty Ltd[8] and Chugg v Pacific Dunlop.[9]

The use of the criminal law to penalise wrongdoers after an OHS event, prima facie seems contrary to the objects and purpose of the OHSA to eliminate risk ‘at the source’ (s2(1)(a)).

The objects in s2 and principles in s4 of the OHSA do not make reference to retrospective punishment for OHS offenders, but rather create an imperative for organisations and employees to introduce proactive and systematic approaches to OHS management to avoid injury or death. The objects of the OHSA are consistent with the recommendation of the 1972 Robens Report that to achieve a better system of safety organisation, more management initiatives and the involvement of the people at the workplace themselves, OHS laws need to move towards ‘self-regulation’[10] and away from regulation through the State. The Robens Report concluded that there are ‘severe practical limits on the extent to which progressively better standards of safety and health at work can be brought about through negative regulation by external agencies.’[11] Additionally, it has been found that there is no statistical correlation between criminal penalties and reduction of workplace injury.[12] Accordingly, there are philosophical and practical reasons to question the role of the criminal law in OHS regulation.

However, criminal sanctions have been a part of the traditional approach to OHS regulation since the early 19th Century[13] and their appropriateness as a matter of public policy has been repeatedly confirmed. The Robens Report considered that penal sanctions remained relevant[14]. Similarly, the Maxwell Report handed down on 6 April 2004, confirmed the primacy of the role of criminal law in OHS[15]. More recently, the National Review to Model OHS Laws First Report in October 2008 and Second Report in January 2009 provide unambiguous support for the use of criminal sanctions for breach of general OHS duties.

The National Review further found that the offence provisions had a wide level of support from unions and the business community on the basis that they gave OHS laws strength, credibility and emphasised the serious social and economic importance of workplace safety.[16] Ultimately the National Review considered there is simply ‘no strong case’ for fundamental change.[17]

The Maxwell Report and National Reports found that the criminal law was effective as an OHS compliance tool due to its deterrent effect. While Maxwell criticised WorkSafe prosecutions as lacking transparency and accountability and considered that penalty provisions were too low, he concluded that the threat of prosecution was a ‘significant factor in promoting compliance,’[18] with a ‘real impact’ on motivating employers to address OHS risks, particularly those who might otherwise lag behind.[19] In this regard, Maxwell acknowledged that monetary penalties do not necessarily result in offenders taking internal disciplinary action or revising controls to prevent contraventions, and may further convey the impression that offences are purchasable, or can be avoided through liquidation or asset stripping.[20] However, he emphasised that there was a matrix of penalties including custodial sentences, health and safety undertakings, community service orders and adverse publicity orders which create further incentives for OHS compliance, particularly relevant to corporate image.[21] The National Reports go further than Maxwell by finding that the criminal law ‘is an essential element of modern OHS legislation,’[22] as part of a ‘continuum’ of compliance mechanisms and a framework in which information and advice can be supplied to encourage and facilitate voluntary compliance.

By its nature, the criminal law involves retrospective punishment by the State of offenders. Although this may seem incongruous to the aim of ‘self-regulation’ of OHS by employers, employees and other stakeholders, it is clear that criminal prosecution has a deterrent role which motivates OHS compliance. Further, penal provisions are only one mechanism of many available to the Victorian WorkCover Authority to achieve the objects of the OHSA.

Authored by Bruce Butler, Special Counsel, Melbourne.

 



[1] This article will look specifically at the law inVictoria, however it is to be noted that all Australian OHS legislation uses the criminal law.

[3] Occupational Health and Safety Act (2004) (Vic) ss.25- 32.

[4] Maxwell, Chris, Occupational Health and Safety Review (March 2004), p 13.

[5] Ibid, p 13 see also paragraphs 1697 – 1702, See also Steward-Crompton, Robin, Mayman, Stephanie and Sherriff, Barry, National Review Into Model Occupational Health and Safety Laws, First Report (October 2008), paragraphs 10.13 and 10.22.

[6] Section 154 of the OHSA provides a protection against self-incrimination, however, WorkSafe Guidelines state that they Inspectors absolute power to ask questions. Further, s.172of the Work Health Safety Bill 2010 removes the protection against self incrimination.

[7] [2010] HCA 1

[8] [2010] VSCA 18

[9] [1988] VR 411

[10] Robens 1972 at paragraph 32 per Creighton, Breen and Rozen, Peter, Occupational Health and Safety Law in Victoria (3rd Ed.) 2007, p 4.

[11] Ibid.

[12] Maxwell, above n 7, p 369, para 1790.

[13] Creighton, Breen and Rozen, Peter, Occupational Health and Safety Law in Victoria (3rd Ed.) 2007, p .

[14] Ibid, chapter 1.

[15] Maxwell, above n 7, Chapter 32

[16] Steward-Crompton, Robin, Mayman, Stephanie and Sherriff, Barry, National Review Into Model Occupational Health and Safety Laws, First Report (October 2008), p 121.

[17] Ibid, p 125, para 10.22.

[18] Maxwell, above n 7, p 369, para 1790.

[19] Ibid, p 370, para 1795-1797.

[20]Ibid, pages 376-7.

[21] Ibid, Chapter 32, see especially p 379.

[22] Steward-Crompton, Mayman, and Sherriff, above n 19, p 122, para 10.10.


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