Do we need to change the law to hold those in charge accountable for deaths and serious harm to workers? Joanne Crawford and Chris Peace look at what the introduction of a corporate manslaughter charge might mean for NZ
In response to WorkSafe New Zealand’s recent statements about the high harm rates in construction work, some commentators suggested Aotearoa New Zealand should introduce a corporate manslaughter charge for cases involving fatal workplace incidents.
There’s no question we need to bring down harm rates in the construction industry. Figures show at least two workers die every month in this industry and serious injuries occur every day.
While a corporate manslaughter charge would increase accountability at board level when a company is found negligent, whether it will reduce harm is another matter.
The UK introduced its Corporate Manslaughter and Corporate Homicide Act in 2007. The legislation has resulted in some high-profile prosecutions, but it hasn’t been a quick fix to workplace safety problems.
In a recent case, a family-owned food waste recycling business was fined £2 million and two owners were imprisoned after workers drowned when they fell into a tanker containing semi-liquid pig feed. One owner got a 13-year sentence and was disqualified from being a director; the second got a 20-month sentence. The company is now in liquidation.
The individuals involved in this case have been held to account. But what we don’t know is whether any lessons have been learned or whether workplaces are any safer as a result.
Indicators of harm
The way we typically measure workplace safety is through 'lagging' indicators, such as fatal accident and serious injury rates. This type of data tells us what has happened but doesn’t tell us why it happened (that’s only revealed through investigations) or how we can improve risk management procedures.
In other words, lagging indicators don’t actually measure whether risks are being managed or not (although it’s safe to assume that where there is a serious injury or fatality, risks are not being managed).
Research on the construction industry has highlighted 'leading' (as opposed to lagging) indicators, such as safety auditing and training, as better gauges of what’s actually being done in the workplace to protect employees. Construction Health and Safety New Zealand has been developing these types of indicators for use in the sector.
Unfortunately, the solution seen by some organisations is still just to hand out personal protective equipment (PPE) or hold toolbox talks (for example, safety meetings before work or at morning tea). Both are important but neither tells us much about whether behaviour has changed, or health and safety has improved.
There are broader issues in this industry that need attention as well: what’s driving the need for speed, low-cost contracts, and a pressurised environment where people are put at risk?
WorkSafe has previously commissioned research on similar issues in the transport sector and their link to vehicle accidents. This research included a workshop involving all the players in the sector as well as individual drivers. Perhaps a similar approach could be tried in the construction world.
Do we need to change the law?
It’s obvious we need to change workplace practices. Do we also need to change the law to hold those in charge accountable for deaths and serious harm to workers and others?
We already have legislation requiring directors and senior managers ('officers') to use due diligence to ensure the business or undertaking complies with the Health and Safety at Work Act.
However, the fines that officers face for breaching the act aren’t particularly high - the maximum is just $600,000 - although a prison term of up to five years can be imposed.
Unlike the UK’s legislation, the act doesn’t stop a person from continuing to be a director or senior manager when they’re found at fault.
One simple option is fix this would be to amend section 382 of the Companies Act to disqualify a person from being a director or taking part in the management of a company for five years, when that person has been convicted of an offence under section 44 of the Health and Safety at Work Act.
This would apply to businesses that manage or control workplaces (such as construction sites) and would arguably serve as a major deterrent to offending. It would also help strengthen management of safety in all companies.
In the meantime, we need to continue improving worker safety in construction with the help of the regulator, construction companies, and trade unions. Worker participation is required as part of risk management so let’s ensure the voices of employees are heard.
And let us not forget the people we have lost.
