When there is a serious injury, dangerous incident or fatality in a workplace and the regulator is notified an inspector may come to investigate. After which the decision to initiate or proceed with a prosecution is made. This decision is a significant one and the effect on those impacted (e.g. the defendant, an injured worker, or the family of a deceased worker) is likely to be considerable. As such, regulators apply decision-making guidelines specific to their jurisdiction.
If the case meets this ‘prosecution test’ they will prosecute for a contravention of the safety laws. Work health and safety (WHS) prosecutions, like all prosecutions, are a form of retributive justice. Meaning a system of justice based on the proportionate punishment of the offenders rather than rehabilitation. Since the introduction of the Factory Act in Australia, this traditional form of justice generally resulting in a monetary penalty, has been considered the best response to a contravention of the safety laws. However, with the number of serious injuries and fatalities that occur in workplaces across Australia annually, does this punitive practice make a difference?
In general, safety regulators believe prosecution is the best form of deterrence. In Australia, one jurisdiction states they ‘actively draw public attention’ to individuals and organisations it successfully prosecutes for breaching the safety laws as a disincentive for non-compliance. Across Australia, this is further supported by the legislated maximum penalties in the various WHS Acts. With a category 1 offence, ranging from $600, 000 or 5 years imprisonment for an individual to $3 million for a body corporate. And the more common offence, category 2 ranging from $300, 000 to $1.5 million.
This seems like a pretty big ‘deterrence’ stick.
However, over the last 2 years in one Australian jurisdiction penalties for those found guilty of a category 2 offence have averaged $35,000. This includes injury outcomes such as severe lacerations or fractures, amputations, spine and brain damage. This average is approximately 2% of the maximum penalty. Penalties for a single fatality in this jurisdiction average $160,000.
And what does ‘actively draw public attention’ mean? Well, upon a finding of guilt by the court, the regulator “may publish identifying information in relation to the defendant(s), the offence, the penalty imposed and related matters”. However, where there is a successful prosecution but an order is made that no conviction is to be recorded, the regulator will “remove information from the court summary to avoid breach of the court’s order and infringement of section 12 of the Penalties and Sentences Act 1992”.
Perhaps, that ‘deterrence’ stick is a bit soft.
The public say they want to “see justice, that someone must go to jail for this”. However, since the inception of the safety laws in this same jurisdiction, no one has actually been imprisoned. So do they really see justice?
Are prosecution penalties really changing behaviour?
The rational change model is the behavioural change theory that underlies most public policy and should continue to be the fundamental building block model for policy making. Still, it has limitations from a behavioural change perspective. Influencing human and organisational behaviour is very complex. As such, the traditional safety regulator approach may be limited without a solid understanding of how to engage organisations and the effective use of alternative enforcement options.
So, rather than just fining those found guilty, should we not encourage alternative sanctions that impose improvements to health and safety in the workplace? In a recent study, a researcher found that prosecution was not the #1 reason for workplaces to improve health and safety. Reporting that it was the experience of a serious injury in the workplace that was the actual driver for change.
So, if monetary fines are not the answer then what else is there?
Restorative Justice: defined as a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.
Sounds new and innovative? Not quite, Restorative approaches to crime date back thousands of years. In Sumer, ancient Iraq (c. 2060 BC), the law Code of Ur-Nammu required restitution for violent offences.
In Australia, our current safety laws have Restorative Justice provisions. Allowing for sentencing guilty offenders with various orders such as Restoration Orders, WHS project orders, court-ordered WHS undertakings and training orders. The laws even allow for the giving of an Enforceable Undertaking (EU) which occurs before a trial and does not constitute an admission of guilt.
In many Australian jurisdictions, training and project orders are commonly-used sentencing methods. Queensland is considered the most prolific giver of enforceable undertakings in Australia, with over 130 undertakings given since it became an alternative option to prosecution. This equates to over $27 million in health and safety improvements across workplaces, industries and communities. More recently other jurisdictions have raised the profile of enforceable undertaking, most notably New South Wales with the giving of 20 undertakings in the past 2 years.
Restorative justice in the Australian criminal justice system sees all parties with a stake in a particular offence come together, Victim, Offender and the community. Research shows this collective approach to repair harm, restore relationships and ultimately strengthen society’s social bonds also reduces recidivism.
Similarly, Enforceable Undertakings have a collective approach to repair harm through significant, long-term activities in the workplace and across industries and communities. Research has found that those who give an undertaking are less likely to re-offend as they are required to implement safety systems and there is a change in workplace culture.
Enforceable Undertakings have generated numerous positive outcomes in one jurisdiction alone. These include:
- A civil construction company commissioned the development of obstacle detection technology for mobile construction plant and vehicle that automatically applies the brakes when an obstacle is detected.
- A small recreational company have conducted crash testing research and developed Australian design standards
- A small waste recycler has conducted mental health workshops in the workplace
- A sugar mill is developing an industry guideline and methodology for under-rapid-water bridge inspections.
- A construction company has sponsored a PhD scholarship named by the widow in memory of the worker for research into the relationship between contractors and sub-contractors in the construction industry.
- A manufacturing company is funding the development of web-based application for schools to maintain machinery safety as well as the installation of safety guarding for plant and equipment in three local high schools.
In this age of disruption, with a growing movement to do safety differently, safety regulators must consider more positive, engaging and enabling approach.
Regulators must consider enforcing safety differently.
Don’t get me wrong, this is not an argument against the need for prosecution. Rather an argument for targeting it to circumstances where it is most likely to be an effective deterrent. It’s a plea for governments to encourage the use of alternative sanctions that impose improvements to health and safety in the workplace.
More than 10 years ago, Braithwaite argued that what is needed is the creation of restorative justice mechanisms such as community conferences in which workers, victims and their families participate with management (including senior management) in a dialogue about what went wrong and what should be done to make sure it never happens again.
Now with the growing use of these alternate enforcement options in Australia, we are starting to build a strong evidence base supporting the use of restorative justice mechanisms. Providing all regulators (not just safety) with a strong case to consider amplifying the use of restorative justice practices to create positive prosecution outcomes.
To create enduring change…
- Bentham, J. (1970). An introduction to the principles of morals and legislation. London: The Athone Press.
- Cavadino, M & Dignan, J. (1997). The Penal System: An Introduction (2nd ed.), p. 39. London: Sage.
- Darley J. M., Pittman T. S. (2003) The psychology of compensatory and retributive justice. Personality and Social Psychology Review 7: 324–336.
- Australian Public Service Commission 2015, Changing behaviour: A Public Policy Perspective
- Johnstone, Richard & King, Michelle (2008) A responsive sanction to promote systematic compliance? Enforceable undertakings in occupational health and safety regulation. Australian Journal of Labour Law, 21, pp. 280-315.
- Unpublished student research study.
- Braithwaite, J. (2002). Restorative justice & responsive regulation / John Braithwaite. (Studies in crime and public policy). Oxford ; New York: Oxford University Press.
- Finkelstein, J. (1968). The Laws of Ur-Nammu. Journal of Cuneiform Studies, 22(3/4), 66-82.
- Larsen, J. (2014). Restorative justice in the Australian criminal justice system. 127, 22.