Westray Law — great on paper

Throw a few owners of unsafe workplaces into jail, and things will change.

by Ish Theilheimer, with YouTube video

A van full of fruit pickers crashes. Workers fall from a scaffold. A sawmill explodes, killing millhands. A trucker falls asleep at the wheel and collides head-on with a tree. Work-related deaths and injuries are so frequent and common, they don't often rate a mention on a busy news day.

These deaths are called "accidents," but if working conditions make them likely, then they're not really accidental at all. They become a cost of doing business — covered by workers' compensation and the special deal that exempts employers from liability if they're covered by it.

Twenty-six miners died at the Westray Mine in Nova Scotia, on May 9, 1992. The subsequent 2004 "Westray Law" threatens heavy penalties for employers who endanger their workers' lives. USW Canada had repeatedly raised alarms about the conditions that led to the fatal underground explosions.

Including work-related deaths in the Criminal Code was a breakthrough at the time. OPSEU reported that "Canada's new legislation is the first of its kind in North America," providing a maximum life imprisonment penalty for criminal negligence in the workplace — much stricter than, say, the Ontario Occupational Health and Safety Act's maximum $500,000 fine and up to one year in jail. However, 20 years later, the tough new Section 217.1 in the Criminal Code has yet to show its teeth.

"People are frustrated by the lack of progress in holding corporations responsible for what happens," said Andy King one of the organizers of the Ottawa Westray +20 Symposium, an international commemoration of the 20th anniversary of the disaster, and an opportunity for academics, researchers, law enforcement officials and union activists to ask why the law named after it isn't used more.  

"There are people working in different places all over the world to try and actually hold corporations accountable," he told Straight Goods News.

Andy King, an organizer of Westray +20, talks about how to stop corporate criminal negligence.

King says individuals need to be held responsible, both by the public and by law officials, for what he calls "corporate criminal negligence." Corporations have many rights, he said, but "they don't have responsibilities that are in any way commensurate to that or accountability that is in any way commensurate to that."

Corporations function, though, "Because senior managers make decisions." The Westray Law was intended to add accountability to that process, so that  "…when managers make decisions not to put something in place that would reduce the risk of something catastrophic happening, and a worker is injured or killed, a member of the public is injured or killed, they can be held accountable for it… And as importantly, the senior managers can be held personally accountable for the decisions they made."

Unfortunately, he said, law enforcement officials have had little political direction to use the tools to enforce this accountability.

One of the speakers at Westray +20 was criminologist Steven Bittle, whose new book, Still Dying For A Living, grew out of his own interest in the Westray Bill.  "Unfortunately, what's happened along the way is that essentially the law has fallen into a state of virtual disuse," he told Straight Goods News. "It's not being enforced."

Steven Bittle, author of Still Dying For A Living, says the Westray Law has fallen into disuse.

Bittle was struck when he compared the political attention paid to "traditional street crimes" with that received by corporate ones  "When you look at the big picture, the harms caused by corporations  financial, social, economic, environmental  far outstrip any of the harms caused by all the traditional so-called street crimes, gangs and drug dealers combined… We don't treat them with the same sense of urgency."

Westray was the prime example, he said, "where 26 men were killed as a result of illegal and unsafe conditions, yet nobody was ever held to account for it, nobody went to jail, nobody spent time in court.  It was just kind of defined away as an unfortunate accident."

People talk about workplace deaths the wrong way. We need to change the frame, as Steven Bittle told us, "So that we can begin to think about injury and death in the workplace as not just “accidents” but as potentially culpable negligence — that somebody's responsible, somebody should have done something to prevent these things, and that they didn't."

The Westray Bill gave attorneys general and law enforcement officials the tools to demand corporate accountability. Now, the conference heard, labour activists are working to educate those officials about this law and lobby them into using it.

Only when employers feel personally responsible for the well-being of their employees — and know they'll go to jail if they're not — will the endless trainwreck of workplace disasters halt.

 

© Copyright 2012 Ish Theilheimer, All rights Reserved. Written For: StraightGoods.ca