精东传媒

February 12, 2019

Killed in the line of work duties: we need to fix dangerous loopholes in health and safety laws

The death last year of Dillon Wu, 20, raises questions about responsibility in workplaces where traditional definitions of employment and employer obligations have been unwound.

Dillon Wu died alone inside a metal tank. It is believed he was asphyxiated by argon gas, used in arc-welding steel.

He is the youngest employee to die in a recent run of deaths in confined spaces. Aged just 20, he was in the second week of his apprenticeship. He should not have been alone or unsupervised, particularly in a confined space.

All such deaths raise questions about workplace safety. But Wu鈥檚 death, at a factory in Melbourne鈥檚 western suburbs on October 4 last year, also raises particular questions about responsibility in workplaces where traditional definitions of employment and employer obligations have been unwound.

Wu鈥檚 apprenticeship was with Australian Industry Group (Ai Group or AiG) but he died at the Melbourne factory of 鈥渉ost employer鈥� Marshall Lethlean Industries.

Both federal and state workplace health and safety laws say responsibility for a worker鈥檚 death lies with an employer. Four months on from Wu鈥檚 death no one has accepted that responsibility.

Prior safety concerns

The Australian Industry Group (AiG) is an employer organisation representing more than 60,000 businesses employing more than a million workers. It runs a major training and apprenticeship scheme (called the AiGTS) for its member organisations. It recruits, trains and pays apprentices, who learn their trades working at 鈥渉ost鈥� companies.

One of those is Marshall Lethlean Industries, which builds and repairs road tankers to transport milk, oil, gases and the like.

AiG says the health and safety of apprentices and trainees 鈥渋s at all times鈥�. But Wu鈥檚 death raises questions about the effectiveness of this commitment in practice.

Even before he died, AiG had reason to be concerned about safety at the Marshall Lethlean factory. The ABC Investigations unit obtained a copy of a safety audit conducted by AiG at the factory about a month before Wu began working there. That audit identified 11 high-priority safety hazards, including the .

AiG鈥檚 chief executive, Innes Willox, has downplayed any organisational culpability in sending Wu to work at a site with known dangers. The safety hazards identified by the audit, , would be common in most workplaces: 鈥淎ll our indications were and continue to be that it was a safe place of work, but what occurred was a terrible tragedy, the details of which we don鈥檛 know.鈥�

Wu鈥檚 death is being investigated by Worksafe Victoria. The agency is not well resourced and its investigations are routinely very slow. So its report could take months or even years.

Until then, it is unlikely either AiG or Marshall Lethlean will take responsibility. AiG, despite being Wu鈥檚 direct employer, has so far said it cannot be responsible for answering any questions. AiG had 鈥渧ery limited information relating to the circumstances of Dillon鈥檚 passing,鈥� it . 鈥淲e have sought this information from Marshall Lethlean Industries, however it has not been forthcoming.鈥�

Marshall Lethlean, meanwhile, has made no public statements.

Agreement, but only in principle

The issue of workplace deaths was investigated by a recent , which issued its less than two weeks after Dillon鈥檚 death.

One problem the report highlights is the need for more clarity and consistency in work health and safety laws.

Workplace health and safety regulation in Australia is a hotch-potch. Constitutionally the power to make such laws rests with the states and territories. Each has developed its own standards.

Governments, state regulatory agencies, employer organisations and unions all agree, at least in principle, on the need for greater consistency 鈥� a process known as harmonisation. In practice, however, there is disagreement on what the benchmark standards should be.

An example is what penalties should be imposed on negligent employers.

Queensland has the most severe penalties as a result of its 鈥渋ndustrial manslaughter鈥� law. The new law was passed in 2017, following some grievous workplace deaths. It makes employing organisations and individual senior officers of those organisations liable for workplace deaths through omission or fault. Penalties include fines up to A$10 million or even prison.

In most states, employer failure is dealt with under criminal legislation where penalties are lower (maximum A$3 million) and legal processes less onerous for employers

The Senate committee inquiry has recommended the Queensland legislation become the national benchmark. Employer groups including the AiG strongly opposed this. So too did the four Coalition members of the Senate inquiry. In a dissenting report that such laws 鈥渨ould expose employers and managers to the risk of lengthy prison terms even where they are unjustly accused of being responsible for incidents in the workplace鈥�.

Who is responsible must be clear

But what penalties should apply is moot if laws provide no clarity on who can be held accountable as the employer.

There is a pressing need to define employer responsibility when there is a 鈥渢riangulated鈥� employment relationship 鈥� such as between a worker, labour hire organisation and a host employer.

There have been cases in Australia where the labour hire company . But in other cases the host organisation .

This is an area where unions have rightly been calling for greater clarity and specificity.

Current legislation appears to give both shared and non-delegable responsibility. But the lack of clarity about who is responsible for what has created the very real danger that either will leave it to the other to take full responsibility in ensuring workers are kept safe.

We don鈥檛 need the conclusions of the Worksafe Victoria investigation into Dillon Wu鈥檚 death to tell us that.

The grief of his family, left without answers or acknowledgement of an employer鈥檚 responsibility, makes that point clear enough.

, Associate Professor, School of History and Politics,

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