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Legislative Assembly
 
WORKPLACE SAFETY LEGISLATION AMENDMENT (WORKPLACE MANSLAUGHTER AND OTHER MATTERS) BILL 2019

14 November 2019
Second reading
Sonya Kilkenny  (ALP)

 


Ms KILKENNY (Carrum) (12:37:28): As a Labor member in this house, can I just say how extremely proud I am today to be able to rise to speak on this bill, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019. I think it is fair to say that all of us on this side of the house recognise the incredible importance of this piece of legislation and just how profound it is. It goes to such core values: it is about the rights of workers to be safe and to have a safe workplace. We know that workplace safety is not a commodity to be traded and it is not a risk to be mitigated. It is absolutely a fundamental human right that every worker and every person around a workplace has the right to be safe and that the safety, health and welfare of workers should be protected. I think it is also fair to say that no-one, particularly not those at the highest levels of organisations, should be able to turn a blind eye to workers’ safety and workplace safety. They should not be able to hide behind corporate veils to avoid criminal liability when someone is killed at a workplace, and they certainly should not be allowed to treat penalties like petty cash or the cost of doing business when we are talking about something as precious as human life. This actually takes me to something that a number of members on the other side have raised, and they have raised it as a condition of why they are not supporting this bill. It also goes to something that I think really evidences the incredible chasm between those on that side of the house and those of us on this side of the house. What they have actually said is that this bill is unfair and discriminatory—it does not apply to employees and workers. But I just think this entire bill is about employees and workers. This bill is about the safety of workers at their workplace. Employers are not the ones dying at work. It is not the CEOs, it is not senior management; they are not dying at work. It is the workers who are dying at work. We know that it is up to 30 workers a year in Victoria. It is heartbreaking—these workers going to work and never coming home. I find it extraordinary that those opposite could base their argument, their opposition to this bill, on something as fundamental as that—on something they have got so fundamentally wrong. I was not going to do this, but I sat here yesterday and listened to some of the contributions from those opposite. I particularly listened to the member for Evelyn. I have to say that not only was I angry at the contribution but I found her contribution insensitive, and particularly insensitive to the families of victims of workplace fatalities. I found her contribution callous and cruel. I do not want to spend much time thinking about it or talking about it, but I do think that those contributions actually highlighted the disregard that those opposite have for workers and workers’ rights and actually a lack of understanding of that kind of power imbalance that exists in employment relationships. We know there is no even playing field when we are talking about employment relationships. There is a disparity in bargaining power; we all know that. That is part of the reason why duties of care actually exist. They recognise imbalances in the bargaining position of people in our communities. They impose a duty on one person to take care to not harm another. It is so clear that employers have that duty; they have that duty to take care of their employees. It is a legal duty and it is a moral duty to ensure the safety of their workers. So I think at the core of this there is no question—the community demand it and they expect it. They want organisations to be held to account for their conduct when their conduct—that is, their decisions, their actions, even their omissions—gives rise to and leads to a loss of life. Another thing the member for Evelyn said yesterday was that we should be very proud of our history of keeping workers safe. I just want to point out to the member for Evelyn that as of 14 November 2019 there have been 20 confirmed workplace fatalities in Victoria this year and WorkSafe Victoria is investigating nine other workplace-related deaths to establish whether those deaths meet the definition of 'workplace fatality’ under the Occupational Health and Safety Act 2004. That is absolutely nothing to be proud of. The other thing that the member for Evelyn posed was the question: what is— Mr Wakeling: On a point of order, Acting Speaker, I appreciate that the member does have some latitude in the debate, but the member has spent an inordinate amount of time focusing on the opposition, and I ask that the member be drawn back to the bill before the house and not use the debate as an opportunity to talk specifically about the member for Evelyn. Ms Halfpenny: On the point of order, Acting Speaker, that is ridiculous. We are debating a bill, and this is exactly why— The ACTING SPEAKER (Ms Ward): Order! There is no point of order. Yes, it is far-reaching; however, in the course of debate it is not unreasonable what the member is saying, and I ask her to continue. Ms KILKENNY: Thank you, Acting Speaker. I raise this in particular, and I think it is entirely relevant, because the member for Evelyn actually posed the question: what is the problem or issue that this bill is seeking to resolve? The issue is that we are preventing workplace death and injury. It does not get any clearer than that, and it is as simple as that. As I said, we are responding to the community expectation and the community demand that the penalties in establishing this as a criminal offence reflect the severity of that conduct and the consequences that lead from that conduct. As I said, it is as simple as that, and the bill reflects the seriousness of the duty that has been imposed. This bill creates a new criminal offence of workplace manslaughter. This is something we took to the election last year. It was a promise, and I am so proud that we are delivering on that promise this year, one year later. I wish to acknowledge the extraordinary work of our Attorney-General and Minister for Workplace Safety and her team in bringing this bill to the house. I would like to acknowledge also and thank the members of the Workplace Manslaughter Implementation Taskforce, led by the Parliamentary Secretary for Workplace Safety, the member for Sydenham. These people have worked extremely hard in developing the law that is before the house today. I also note that the task force was supported by a families reference group, and that is clearly a group that no-one wants to be a member of. They are families of victims of workplace fatalities. I offer my most sincere condolences to those people. I cannot even imagine the loss and the grief that they have endured, and I can only hope that the new laws that we are putting before the house and that will hopefully pass the houses in the not-too-distant future provide a small level of comfort to them that there is some sense of justice and perhaps some sense of closure for them as well. I want to quickly touch on something that the member for Kew raised yesterday. I quote from Hansard. He said that this law: … is an attempt to legislate a duty of care and a standard of care which lowers the threshold bar of what constitutes manslaughter only in workplaces—nowhere else. I suspect the member was perhaps just reproducing some advice that had been given to him without him actually turning his mind to the issue at hand, because if he had turned his mind to it, he would not have then said: The proposed changes will bring into contention the possibility of the accused being people who had no intent to commit any crime by omission or recklessness—intent being rather important. I think that is the very point here—that with criminal negligence intent is not relevant. This is not an offence of reckless murder. For criminal negligence—and this is important—what is required to be proved is that the accused’s act or omission fell so far below the standard of care a reasonable person would have exercised and involved such a high risk of death or really serious injury that the act or omission merits criminal punishment, as it should. And that is exactly what this bill does. It is not too much to ask. This is not unfair. What is unfair is allowing employers to cut corners, to jeopardise the safety of their workers and to treat penalties like petty cash. This is the fair thing to do, this is the right thing to do, and I absolutely commend this bill to the house.