31 January 2003
Professor Harry Glasbeek has been described as 'one of several almost unsung heroes of the Canadian occupational health and safety movement'.
He was in Melbourne for the first half of 2002 as a Visiting Professorial Fellow in the School of Law at Victoria University. After hearing Professor Glasbeek address a lecture organised by the Victoria University Centre for Workplace Studies earlier this year I would suggest he would be better described as an 'unsung hero of the international occupational health and safety movement'. I would also suggest had he not followed a career in law he might well have been a successful Shakespearean actor with his dramatic and passionate style of oration. Professor Glasbeek grew up in Victoria and is (Emeritus) Professor, Osgood Hall Law School, York University, Toronto, Canada, a Barrister and Solicitor of the Supreme Court of Victoria, a labour law academic, researcher, author and social activist.
His visit to Melbourne coincided with the defeat of the Crimes (Workplace Deaths and Serious Injuries) Bill by the Opposition in the Legislative Council. In the following interview Professor Glasbeek discusses the technical and ideological difficulties in prosecuting corporations under current law and the benefits of industrial manslaughter legislation. He also shares some of his own ideas on campaign strategies for the union movement on this issue.
The trouble with that is it becomes obvious to the public, especially when you get an Esso Longford kind of disaster, that there is preferential treatment.
The political reasoning for the Industrial Manslaughter Bill of course was the Esso Longford disaster. The reasoning encompassed legal and technological issues at one end and ideological issues at the other. These are the issues that have made it difficult to punish corporations and their major actors in the past.
Technically we have a series of difficulties arising out of the way we create and treat corporations. On the other side there are ideological difficulties that deter governments from wanting to treat corporations and their senior actors as criminally responsible because they prefer high level for profit activity.
The trouble with that is it becomes obvious to the public, especially when you get an Esso Longford kind of disaster, that there is preferential treatment. Then you get pressure on governments and public policy makers to pretend that there is equality in the world; that corporations and their actors will also be treated like other citizens who have behaved in a deviant manner.
...any single shareholder may not be concerned about the behaviour of the corporation because he or she may not be a shareholder by the time the matter comes into public view.
The Industrial Manslaughter Bill then, ought to be seen in the first place as just a way of overcoming the technical difficulties.
The technical difficulties are simple. A Corporation is created in law as an individual person who owns the property that has been contributed by investors. The managers of that property are managers appointed by the investors, the shareholders, but the shareholders themselves have limited liability. The only risk they run is of losing the money they have invested.
Often the original investors sell the interests they have in departments of the corporation. As a result investors are continually changing. The consequence of that is that no particular shareholder has much of a financial risk in terms of his overall wealth.
Should a corporation fail or be held criminally responsible, the loss to that shareholder will be relatively minimal compared to the other wealth that the shareholder has. In addition, any single shareholder may not be concerned about the behaviour of the corporation because he or she may not be a shareholder by the time the matter comes into public view. Therefore you have got shareholders with very limited interests in making sure that the senior managers of the corporation behave properly.
It is very difficult in a large corporation to find who did the act because acts are the culmination of many decisions and it is very difficult to know who had what intent.
The other set of technical difficulties in a corporation is identifying the person who is criminally accountable. To be criminally accountable an individual has to be able to do the criminal act with the appropriate criminal intent.
A corporation in itself of course, can't do anything, nor can they think. The consequence of that is that we have invented a doctrine whereby the corporation will be held criminally responsible if its 'guiding mind and will' - somebody with senior policy making powers has done the act and had the criminal intent.
It is very difficult in a large corporation to find who did the act because acts are the culmination of many decisions and it is very difficult to know who had what intent. Even when you find all of that out it is difficult to say that those people who did the act and did have a certain kind of intent were the senior 'guiding minds and wills'. So there are technical hitches of great proportions.
...Prosecutors who are trained like all lawyers to believe that all economic activity is good activity ...
Now if you turn to the ideological side you have prosecutors with very few resources to overcome these technical difficulties and who are trained like all lawyers to believe that all economic activity is good activity and are therefore unlikely to want to prosecute.
They also think it is illogical, apart from technically difficult, because they know that a corporation is really a collective and not an individual and criminal laws should only apply to individual acts. So there are many hurdles to cross before a prosecutor will bring a charge against a large corporation. The manslaughter bill tackles the technical difficulties. It does so by saying you don't have to find who the actors were and what intent they had. A corporation will be held to be criminally responsible for gross negligence that causes death or serious bodily injury and it can be so held if any of its employees acting within the scope of their normal authority did the act. It could be one employee or a number of employees who combined together in a decision that led to the act.
That should be enough but it doesn't establish the intent. Intent is established by examining the prevailing culture within a corporation. If there is a culture that permitted or authorised conduct by the employees that led to the criminal act therein lies the intent. This means that you don't have to find the 'guiding mind and will' and you have overcome one technical difficulty.
If they have complied then there is no culture that led to gross negligence. If they haven't complied then maybe they are liable.
The remaining question then becomes how do you find whether there was a culture. Basically what you are looking for is to see whether or not the senior officers, not necessarily the guiding mind and will in the old sense, in the corporation had set up appropriate supervisory systems, monitoring systems, compliance systems and reporting systems.
This is basically a due diligence system to comply with existing OHS statutes. If they have complied then there is no culture that led to gross negligence. If they haven't complied then maybe they are liable. The proposed legislation (now defeated) also makes a corporation and its senior officers liable provided the corporation is grossly negligent in the way I have just described. If the senior officers actually anticipated in some direct way or contributed to creating this gross negligence culture they can be held accountable.
This means that we consider the corporation as a functioning whole rather than an individual that is analogous to an individual citizen. We are treating it as an organisational thing and that is important - that is a change both in technique and ideology.
It also says we are now prepared to look at the possibility that that kind of structure for profit could be responsible criminally. That becomes an ideological attack because it suggests that mere regulation of the OHS kind will not be acceptable.
We are denouncing a contravening of the Act because it causes so much harm.
Here is a very important factor of industrial manslaughter legislation - it holds a corporation responsible for killing or causing serious injury - that is not what the OHS Act does. If you are convicted under the OHS Act you only get convicted for contravening the relevant section, the actual harm done doesn't matter.
In the case where someone is killed due to lack of a guard or adequate ventilation the offence is related to not providing a guard or adequate ventilation. The actual killing is not the offence the employer is charged with.
There is a great change in approach through industrial manslaughter legislation. We are denouncing a contravening of the Act because it causes so much harm. What we are saying is that under the OHS Act you ought to have applied and complied with standards such as having a guard, a ventilation system or adequate supervision which the Act prescribes. However if you don't the fact that there is a bad outcome is just unlucky - it was not due to your intent - it is the natural result of doing something you ought to be doing - making profit - and doing it slightly wrongly. Under industrial manslaughter legislation a grossly negligent employer would be denounced and stigmatised if a worker was killed. It would be an important step to have industrial manslaughter legislation even though it would lead to very few convictions. There would not be many convictions because it is hard to prove gross negligence and you would be dealing with exceptional circumstances.
There are three areas that the union movement could focus on in campaigns to improve workers health and safety in Victoria according to Professor Glasbeek.
A small amount of fault could cause the most harm and a large fault could cause minimum harm and then you get a series of disjunctions between injury and compensation.
The first and most difficult is that you should give up the idea that you can sue whenever someone is hurt. The reason for this is that compensation and prevention don't mix. If you concentrate on compensation as a single issue you agree to the principle that employers have a right to buy workers lives and there are no questions about standards because a person is compensated. If you sue all the efforts go into proving fault. A small amount of fault could cause the most harm and a large fault could cause minimum harm and then you get a series of disjunctions between injury and compensation. Insurance premiums for employers are costly and of course workers bear the brunt of insurance payments that will be taken out of their wages.
So the people who take the most amount of risk have the least to say.
Workers should control the workplace and grossly negligent behaviour by employers should be criminalised. If employers are willing to make money out of people's lives, they must agree to democratise the workplace and recognise that work will create risk. When an employer sets up a workplace he or she decides how much capital to invest, what will be made, which substances will be used, how many people to employ, etc.
There are very few social or governmental constraints on employers. Workers have no input into these arrangements yet they are the major risk takers. The employer has limited risks, certainly no physical ones and the costs are usually passed on to workers and consumers. So the people who take the most amount of risk have the least to say.
Unions need to campaign for joint health and safety committees with worker majority. There should be a universal compensation system and criminal penalties for grossly negligent employers.
I would suggest we go as far as charging shareholders of grossly negligent companies.
The proposed industrial manslaughter legislation needs to be strengthened. It still treats a corporation as a 'thing'. The criminal law proper must be applied to individuals. I would suggest we go as far as charging the shareholders of grossly negligent companies. Just as you would charge someone who benefited from the criminal behaviour of a thief by receiving stolen goods.