Out of the blue last week, Justice Minister Amy Adams declared she wanted the crime of corporate manslaughter to be added to the workplace health and safety reform legislation currently before Parliament. Her announcement was a surprise given the reservations previously voiced by the Prime Minister. It had appeared the Government was prepared to ride out emotion-charged calls for companies to be made more accountable in the wake of the Pike River tragedy. Now, there will be a step that way. But within a day or two of her initial announcement, Ms Adams was hosing down expectations this country would soon have a corporate manslaughter law like that of Britain.
If there is an addition to the legislation, it would not, she said, be aimed at individual directors but at the corporation. Indeed, the term 'corporate manslaughter' would not be used. To some degree, there is reason not to follow the British lead. But it is important the new law nods its head in that direction. Not because it will provide a panacea for the families of people killed in workplace accidents. And not because a large number of companies will suddenly fall foul of the new law and be saddled with substantial fines. But because of the message it sends. It puts company boards on notice that they must provide leadership in safety matters.
The Minister of Workplace Safety has suggested there is already a strong sanctions regime. Indeed, it decrees that companies can be fined up to $500,000 for knowingly taking action that is reasonably likely to cause serious harm, and up to $250,000 for failing to comply with the Health and Safety in Employment Act. But in practice this has been applied only to directors involved in day-to-day company operations. A new law would widen that ambit when the gross negligence of the organisation as a whole was in question. This would be especially relevant when it was difficult to prove an individual was responsible for a death.
In Britain, where corporate manslaughter has been part of the landscape since 2007, it has not been plain sailing. In the case of the Herald of Free Enterprise ferry tragedy, for example, it was found the negligence could not be attributed to any individual who was a "controlling mind". Other cases have illustrated the difficulty of proving there had been a gross failure of management with fatal consequences. This suggests that the strongest incentive for the creation of safe workplaces here will remain the existing regime provision which dictates an individual can be imprisoned for acting in a way he or she knew was likely to cause serious harm in the workplace. It is important, also, that Ms Adams' initiative does not draw attention away from other aspects of the reform. It would come into play only after an accident. The emphasis must be on ensuring the law is as effective as possible in preventing fatalities in the first place. In that context, her proposal will be a useful addition to the health and safety tool-box. Nobody should be greatly surprised by it. Heightened obligations to ensure a safe workplace should be a consequence of tragedies like Pike River and the CTV Building.
