The deafening silence coming from the four upper house National MPs during the heated debate on the Industrial Manslaughter Bill last week should have sent signals to the Liberals, One Nation and Shooters, Fishers and Farmers MPs that something was not quite right.
For months industry peak bodies including WAFarmers, PGA, Master Builders, Electrical Contractor and Transport operators had been working with some of the State’s best lawyers in an attempt to amend the State Governments union driven attempt to send small business owners to jail for when something goes horribly wrong and a death occurs at a workplace.
Repeatedly we warned the government that this was not the way to address the problem and should the government’s bill get passed it risked putting small business owners like farmers, fishers and contractors in jail for double the term of someone who caused a death under the one punch law.
Over the last few months WAFarmers has been workshopping the risks of the Industrial Manslaughter legislation with the help of Phil Brunner from Bailiwick Legal as part of our road shows and you could have heard a pin dropped when farmers were told of the risks the legislation posed to their farm businesses.
Phil outlined a recent case in Queensland where a Brisbane scrap metal yard business was fined $3 million and its two directors sentenced to 10 months imprisonment for reckless conduct after a worker was hit by a reversing forklift and later died from his injuries.
This was a small family business employing unskilled workers expected to do a wide range of things to get the job done – sound similar to a family farm. You can imagine what happened to that business. It’s gone. The same thing would happen if a farm worker is crushed under the old front end loader with the dodgy hydraulics this coming harvest – after the legal fees, fines and possible jail term – the farm is gone.
This debate is all about the level of responsibility employers hold. The government wants you accountable for everything, seems the National party agree or at least when it comes to a workers death. When it comes to negligence we are not talking about cases of gross negligence such as sending someone down a mine shaft when the mine engineer deemed the mine dangerous, or putting someone up the windmill with no safety gear during a cyclone.
We are talking about something simple going wrong that leads to a death and you or your partner or kids or parents as a responsible person in charge of the business (which may be a director or executive officer) could very easily end up in jail.
It could be as simple as the mobile phone antenna on the roof was out of alignment and a backpacker slips off the roof or they drowned in the dam attempting to clean the float valve. What was your safety plan, where was the manual that identified the risk, were your life jackets in code, were the safety ropes Australian standard? Even then there is no guarantee you can escape jail, did you know the roof was slippery or the dam was cold, yes – then guilty as charged.
The government claim this is not the case, Colin De Grussa the National Party member running the debate in the upper house agrees but the lawyers don’t.
As the debate raged on the floor of the House it was left to Shadow Liberal Attorney General Michael Minchin, Shooters Fishers and Farmers Rick Mazza and One Nation’s Colin Ticknell to repeatedly get to their feet to rebut the Minister for Agriculture who was doggedly following the union line of logic – employers needed to be held responsible.
All the while the National Party representatives remained glued to their chairs, not a word of support, not one of them jumped to their feet to talk about the risk this legislation posed to farm businesses.
As the debate went back and forth not one of them spoke up to explain there was no risk of a farmer ending up in jail, if they had done everything possible to keep their workers safe.
This debate is all about the threshold that farmers are being held to by the courts when it comes to the question of a duty of care. The government wanted a low threshold for offences linked to a death where an employer or company director faces serious penalties for something they did not deliberately or knowingly intend (and who in their right mind intends for someone to die at work) thereby criminalising accidents.
The original intent was a push by the unions to go after the big corporates on St Georges Terrace for problems on construction or mining sites that lead to death. The old laws were weak and resulted in very low penalties in the tens of thousands of dollars, but these were fixed two years ago when the penalties were raised from 2 to 5 years gaol and fines from $500k to $2.7m.
However, these latest laws are an attempt to make it far easier to put employers away, its according to the government an essential part of changing the culture of work safety management.
During the parliamentary debate we had the Minister for Agriculture doggedly defending the government’s goal of imposing harsh penalties of employers. She summed up the government’s position with this statement:
“we believe that the existence of the higher level penalties and the possibility of being liable for failure in duty of care that might result in imprisonment is something that will contribute to the culture (change).”
It’s the old revolutionary assuage of we had to crack a few eggs to make an omelette. In this case the Minister and the Nationals believes that farmers facing the risk of going to jail is a fair price to pay to drive farm work places into a zero risk, zero harm culture. The only problem is its likely to result in zero employment. There is no such thing as zero risk farming – ask someone who works with cattle.
With the new changes that got pushed through with the help of the Nationals small businesses and farming families will be exposed to prosecution for failure of duty attracting up to 5 years jail and fines of up to $680,000 for an individual and $3.5 million for a body corporate.
It seems the National Party are in complete agreement with this new approach. They backed the government’s position which has now led to Western Australia having what the lawyers claim is the lowest threshold in Australia for employer responsibility. The Nationals claim otherwise.
This is what the lawyers claim
Section 31 – the section was expanded to include death, carrying a 5 year jail term as per the existing penalty but lowering the threshold from the existing ‘gross negligence’ (the Boland Review threshold, and that used elsewhere in Australia with IM) to the low threshold that we had raised issues with when it sat in 30B. This was despite several amendments being moved to add back in the threshold of ‘gross negligence’, all of which were rejected. The ultimate vote was 11 in support of including ‘gross negligence’ and 18 against, including the Nationals which surprised everyone by backflipping on their earlier indications and voting with Labor to introduce the lower threshold for IM.
What is suspicious is why in the months leading up to the debate they had nothing to say publicly on their thinking. No media releases, no questions in parliament, no interviews, no questions raised on our road trips with Phil Brunner, nothing except comments in a committee report no one reads. Even the industry alliance of peak bodies was not told they were thinking of backing the government. In fact we were all blindsided with the fact they sat in deadly silence during the debate on the key clauses until they revealed their hand by walking across the floor to vote with the government and the Greens.
We don’t know.
Colin DeGrussa their upper house spokesperson claims they were not briefed on the alternative clause put up by Rick Mazza which would have limited the risk carried by farmers by putting in place a lower threshold of “failure of duty”. The lawyers claim otherwise – who do you believe, one thing is for sure they certainly were not working with the Liberals and otherts to block the bill. Either way the Nationals could have asked for more time to consider, the government would have adjourned the debate rather than lose that amendment but they elected to vote with the government and push the clauses through.
One would have thought if the Nationals were so supportive of these new penalties, and the position that farmers should be sent to jail for acts of negligence that leads to death then they would have been prepared to stand up in parliament and make the case and debate it with the Liberals and the cross benches.
But they sat in silence, out of touch with the farmers that support them, and out of touch with the small business community which now face a new world of risks when it comes to employing people.
One has to ask is the National Party losing touch with its base. Supporting this sort of anti business legislation raises questions about just how close to the Labour party the Nationals are in values? Will they do a deal with labour on the Animal Welfare Bill? Will they do a deal with Labor for the upcoming election? Readers will recall how close Brendon Grylls got in 2008 to signing up to share power with the Labor Party.
But to his credit Colin De Grussa picked up the phone to run the Nationals case that the bill as they have amended it is far better than what the government originally put up and it’s the Liberals and Shooters that are playing politics with the truth. To be honest the legal debate is so complex that it needs to go to the front bar of the pub for resolution.
Should farmers go to jail if a worker dies as a result of negligent oversight? The Nationals, Greens and ALP think so. The Liberals, Shooters, Fishers and Farmers and One Nation think not. Whos right? All we know now is that when the first farmer goes to jail after a work place death then we will know from the discussion in the front bar if the bar has been set too high or too low.