BLF - OHS - CHAPTER TEN: 'KILLING NO MURDER'

Chapter ten

“KILLING NO MURDER”

The factory-owners of the time formed a “trade union” to resist the factory legislation, the so-called “National Association for the Amendment of the Factory Laws”, based in Manchester, which collected a sum of more than £50,000 in March 1855 from contributions on the basis of 2 shillings per horse-power, to meet the legal costs of members prosecuted by the factory inspectors and conduct their cases on behalf of the Association. The object was to prove “killing no murder” if done for the sake of profit.

Karl Marx, Capital, III.[1]

11,628 words/14,904 with notes

More than buildings rise on “a framework of human flesh”. So, too, do the profits of Messrs Construction Capital. The previous 80,000 words have carried our understanding of that reciprocity past the level of generalisation. The next step is to foreground the concepts embedded in that analysis by asking how the il-logic that compels capital to expand also makes it injure human capacities. The persistence of those harms becomes explicable once located within the dynamics and structures of capitalism, primarily, its disciplining of labour-time. Outside that framework, both data and concepts remain abstract.

Investigating the relationship between the needs of capital and the frequency of harms will proceed through four phases. The first is a reminder that the assaults suffered by builders’ labourers are but a microcosm of the gore that has accompanied capital accumulation around the globe. The second section integrates the prevalence of on-site injuries with the mechanisms that capital relies on to expand. A third section documents the class bias in the operation of OHS laws. The book culminates by showing why “legal reasoning” premised on the tripod of “equality before the law”, evil intent as necessary for crime, and individualism as autonomy prevents OHS violations from being treated as real crimes.

The following schema tabulates the material.

1. Brutal new world
1A Pound of flesh

1A (i) systems of slavery
1A (ii) freeing up labour
1A (iii) disciplining labour
1A (iv) war-making
1A (v) good repute

2. The il-logic of Capital
2A Market forces

2A (i) workers’ needs
2A (ii) force of competition

2B Time means money

2B (i) Labour discipline

2B (i) (a) Continuous flows
2B (i) (b) Speed-ups

2B (ii) Turnover of money-capital
2B (iii) Subbies

3. Fit the crime
3A Offences

3A (i) Manslaughter

3B Prosecutions

3C Convictions

3C (i) Judicial discretion
3C (ii) Defence

3D Penalties

4. “No fault or flaw”
4A Class

4A (ii) A wealth of wisdom

4B Order in the courts

4B (i) Personnel
4B (ii) Practices
4B (iii) Philosophy

4B (iii)(a) Contracts
4B (iii)(b) Intent
4B (iii)(c) Exploitation
4B (iii)(d) Culture of rogues
4B (iii)(e) Individualism as autonomy
4B (iii)(f) Corporate immunity

5. Class analysis

1. Brutal new world

1A Pounds of flesh
Shakespeare’s The Merchant of Venice trades in the origins of capitalism through its legal processes. Shylock advances money to Antonio so that his dear friend, Bassanio, can marry a rich and lovely lady, Portia. The security on the loan is a pound of Antonio’s flesh. When Antonio cannot repay in time, Shylock insists on his bond. The Christians abuse the Jew for a want of mercy. Shylock replies that he has as much right to the pound of Antonio’s flesh as the Venetian traders do to their bonded servants: 

You have among you many a purchased slave
Which, like your asses and your dogs and mules,
You use in abject and in slavish parts
Because you bought them. Shall I then say to you
“Let them be free.” …

You will answer

“The slaves are ours”. So do I answer you.
The pound of flesh which I demand of him
Is dearly bought. ‘Tis mine, and I will have it. (Act 4, scene 1, 89-102)

Shakespeare has made Shylock’s usury appear as the moral equivalent to Christian slave-holding. Shylock concludes by declaring: “I stand for judgement. Answer: shall I have it?” Portia saves Antonio by answering “Yes”. Shylock is to have his pound of flesh – but not a single drop of blood. The bond must be honoured exactly.

Capitalists nowadays attain such precision through labour-market flexibility, time-and-motion management and standardisation. These controls are but some of the changes in capitalism since its inception among the merchants of Fourteenth-century Venice. In addition, the functions of banker, trader, farmer and manufacturer have been merged inside corporations. The crucial change, however, was to the manner of exploiting human capacities. That essential shifted from the possession of chattel slaves to the purchase of labour-power from people forced into wage-slavery.

How was this new world brought into being? Much of the answer is through violence. Across hundreds of years, the agents of capital have been responsible for the deaths of millions upon tens of millions to acquire materials or labour power, and to win opportunities for investments or trade. Those developments will be introduced through a quartet of intertwining features: one, the origins of capitalism in chattel slavery; two, the reliance of capitalists on the state to drive people into wage-slavery; three, the disciplining of labour; and, four, the dependence of capitalists on the state for war-making to secure resources and sales.

1A (i) systems of slavery: The free market of capitalism rose on the backs of slaves and bonded workers. Capitalists employed slaves to gather the critical mass of political and economic powers they needed to overwhelm the restrictions of feudalism. In a triangular trade for rum and sugar, merchants transported millions of Africans to the Americas until every brick in Bristol was mortared with their blood.[2] Barbarism on the plantations of the West Indies underwrote the sweetness and light pictured by Jane Austen, a secret locked in the attic of English high culture, along with the mad Creole wife in Jane Eyre.[3] When Britain abolished chattel slavery in 1833, the government compensated the owners for the loss of their property in living tools. The slaves got nothing for the wealth that their labours had added.

By then, the methods for exploiting human capacities extended beyond serfdom and slavery to peonage and indentured labour. [4] Many of the US slaves who got their liberty in the 1860s were forced into bonded labour, as freed Russian serfs had been ten years earlier. Elsewhere, masters paid workers in goods at inflated prices so that these peons were forever in debt. Limited-term bondage replaced chattel slavery throughout the British Empire in the nineteenth century, for example, when Pacific Islanders were carried away to the cane fields of Queensland. Indenture better served certain needs of capital for a flexible and mobile supply of labour than did chattel slaves or free labour.

1A (ii) freeing up labour: No one could be born a slave unless a master had owned his parents. Similarly, no one can be a capitalist without wage-slaves. The propertylessness of the majority is the pre-condition for the few to control productive property. “Free” meant that workers were freed from owning the productive resources that had allowed them to be self-sufficient. Between 1750 and 1830, the parliament at Westminster enclosed one-fifth of English lands, a piece of grand larceny immortalised in verse:

The fault is great in man or woman
Who steals a goose from off a common;
But what can plead that man’s excuse
Who steals a common from a goose? (1821)

That deprivation of the wealth of nature propelled villagers into urban areas to sell their labour power at factory gates. In the colonies, 100 years later, the imposition of a tax payable only in cash coerced locals into the labour market, as happened when Australian officials drove Papuans to harvest copra on settler plantations. While European workers were free to become wage-slaves, that condition meant that they were not free to withdraw their labour. Throughout the nineteenth century, they were punished under the Masters and Servants Acts if they broke an employment contract.[5]

1A (iii) Disciplining labour: Being obliged to sell one’s capacities for wages is only the first step towards the wage-slaves’ exploitation by capital. Equally important is the disciplining of workers. In 1697, the champion of bourgeois liberty, John Locke, had advised the Board of Trade that the idle deserved to be whipped and have their ears lopped off; at three years old, their children ought to be institutionalised to acquire the habits that would benefit employers.[6] Small wonder then that, by the 1770s, the godfather of free-market theology, Adam Smith, could conclude: “Laws and government may be considered in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods.”[7] One hundred and fifty years later, the founder of German sociology, Max Weber, acknowledged that the spirit of capitalism had soared on the repression of free will: “As every employer knows, the lack of conscientiousness in labourers is one of the principal obstacles to capitalistic development.” Weber understood that the Protestant ethic must be “the product of a long and arduous process of education,” sustained by a political framework in which, he added, “[t]he decisive means … is violence.”[8]

Apologists for market forces laud their competitiveness but decline to follow Weber in recognising its force. Individual capitalists, however, have been known to speak the truth. In 1908, a Sydney contractor accepted that rock-chopping laid waste to his labourers:

I think that the sewer miners are greatly to be pitied in the work they have to do. If the men do not complain, I shut my eyes to the facts, because, in competition, you cannot afford to incur any greater expense than is necessary.[9] 

Faced with employees who were literate and organised, few capitalists dared to be so forthright.[10] Instead, the violence inherent in capitalism was camouflaged behind claims about an opposition between the state and the market. Professors promote this pretence with talk of the nation-states when the reality is of a nation-market-states. Their officials attempt for the expansion of capital what its managers cannot achieve through corporations. A prime example remains the waging of wars to give capitals access to the wealth of nature and control over markets.

1A (iv) War-making: In marching through barriers to trade across Europe, Napoleon’s armies extended the terrorism of France’s bourgeois revolutionaries. Lincoln entered the Civil War in 1861 to maintain the United States as a single nation-market-state; one objective was to hold onto the Mississippi Valley as a trade route for the mid-western States; a parallel aim was for the mill-owners of New England to retain dominance over their suppliers in the cotton-growing South. Two years later, Lincoln freed the slaves to defeat the Confederacy’s war for independence. For the next 30 years, the Union army concluded its genocide of native Americans; then, from 1900, US Marines exported the slaughterhouse to the Philippines. At the same time, the British imperialists invented concentration camps to secure gold, diamonds and naval trading posts in southern Africa.

The twentieth century proved a new hundred-year war. Tens of millions of conscripts and hundreds of millions of civilians were sacrificed in inter-capitalist conflicts. ANZACs were slaughtered at Gallipoli to provide Czarist Russia with warm-water ports. The US imperium entered the hostilities in 1917 to protect its exports to the Allies in what was “a sordid trade war”. Having blasted into Japan in the1850s, the US strategists moved, from the late 1930s, to keep their slice of the Chinese melon safe from rival imperialists. After defeating the Japanese militarists, the US planners dropped two atomic bombs on civilians to assert dominance over its allies.

Corporations meanwhile maintained a line of profits from the war-making of their nation-market-states. Du Pont, for example, had advanced from manufacturing gun-powder to the production of chemicals, plastics and onto automobiles at General Motors, while retaining its place among the merchants of death. In Germany, Krupps and Seimens worked slave labourers to death for profit and to nourish the Nazi war-machine.[11]

1A (v) Good repute: To workers alive in the 1940s, capitalism had delivered two depressions, two world wars and fascism.[12] The system inspired fear and loathing. Mass mobilisations for war had tilted the balance of class forces in favour of the working class by endangering the capitalists’ monopoly of violence. In 1948, the American Business Review accepted that “capitalism” had become “a brand name of demonstrated ill will” and endorsed its replacement with “free enterprise”. To prosper, capitalism had to shed its reputation for mayhem. US employer groups had spent $100m. in 1946-47 repackaging their system.[13] McCarthyism gagged those who refused to forget real existing capitalism. Since then, corporations and their governments have outlaid billions to confuse wage-slavery with freedom. Market researchers, PR agents and social scientists built this propaganda around legends about individual entrepreneurs, despite the dominance of conglomerates backed by their governments.[14]

Because ideas convince only when they strike a chord in experience, corporate managers and state officials also had to revive the economic system without, at first, slashing real wages or lengthening the working day. A second industrial revolution of electrical power and petro-chemicals helped managers to realign exploitation away from such sweating and towards raising the output from each unit of labour-time.

The means for accommodating proletarian demands with profitability varied between nation-market-states. In the USA, military spending had dragged the economy out of its deflationary cycle after the failure of the New Deal. In the 1950s, the US warfare state exploded into a military-legislative-academic-industrial complex which underpinned civilian employment, aided by consumer credit. Elsewhere, the strength of working peoples secured welfare states which stimulated domestic markets while slowing, for a time, the spread of inequalities.  

2. THE IL-LOGIC OF CAPITAL
Thus far, this chapter has projected assaults in workplaces against the big screen of the violence required for aggregate capital to grow. The next step is to trace how the gears governing that expansion affect the rates of injury among construction workers. The explanation moves through two stages:

A. specifying the force of the market;
B. showing why labour-time does indeed mean money.

The pair coincide in the use of sub-contractors to reduce time-costs for both labour and capital.

2A. Market forces 
Every firm faces conflicting yet interlocking pressures, one from its competitors and the other from its own workers. These twins deliver the force of the market.

2A (i) Pricing: Competition is obvious through pricing. Consider a newcomer who uses cheaper materials or less labour-time to lower the costs per unit. Reducing the expense of making each commodity depends on increasing the numbers produced. Because the profit possible from each unit contracts, each firm must boost its total sales to maintain its absolute earnings. Existing makers then respond in kind, or go out of business. Competition takes multiple forms. For instance, one product will render another obsolete. Of course, firms try to minimise competition by taking over their rivals or by joining cartels. The result has been to intensify competition among a shrinking number of firms (oligopolies).

2A (ii) Labour costs: Each business could cope with its competitors more easily were it not for its workers’ driving up labour costs. That pressure derives from two sources: the first is the workers’ quest for a civilised life through higher wages, shorter hours and safer conditions; and the second is the need that capitals have to sell their ever expanding outputs. Aggregate capital therefore induces a greater volume of needs in its workforce through mass marketing. Most of those super-sized customers will be wage-earners. As a result, the system places upward pressure on the wages bill for individual capitals.[15] In this way, the consequences of competition feed back into the cycles of production and consumption to intensify the forcefulness of the market.

2B Time means money
The conflicts with rivals and workers teach capitalists why “moments are the elements of profit”.[16] To put that rule into effect, they

2B (i) discipline labour; and
2B (ii) accelerate the turnover of money-capital.

Although these pressures apply to all employers, the peculiarities of the building sector intensify their impact.

2B (i) labour discipline: Employers pay labourers for their capacity to add value to raw materials or semi-finished goods. The capitalists buy this capacity in units of labour- time. The President of the Commonwealth Conciliation and Arbitration Court in 1913 determined that the “working time of the labourer is time purchased by the employer, who has the exclusive right to it.”[17] That legal control over labour-time cannot give its buyers the entirety of its product because some has to go for wages. Hence, the working day has two compartments. The first contains the hours that workers take to produce enough for their employer to cover their wages. In the rest of the day, the goods that workers produce are surplus to the cost of reproducing their capacities. They get nothing for those hours. Instead, capitalists expropriate the values added during that time. Any profit will derive from selling the products from that part of the working day. As a result, capitalists attempt to increase the unpaid fraction. Where workers are disorganised, the managers lengthen the day so that the wage-earners put in more hours of “unpaid” time. One alternative is for supervisors to make workers go faster so as to produce more within the same time. In practice, the capitalists aim at both.

The “exclusive right” of employers to labour time is no guarantee of its application. Hence, the nub of the class struggle becomes the disciplining of labour time. To ward off competitors, as mentioned above, the agents of capital reduce the quantum of labour-time needed for each unit of production. To achieve that end, they strive after two conditions:

2B (i)(a) that there be no breaks during the paid labour-time;
2B (i)(b) that workers go faster throughout all the time for which they are paid.

Capitalists must enforce these procedures to keep up their rates of profit.

2B (i)(a) Continuous flows: Supervisors strive to make the time during which employees are being productive coincide with the minutes for which they are paid. Before labourers organised themselves into the ABLF, employers stood down them without pay for 15-minute blocks when materials were not to hand, or if the weather stopped operations. As projects became larger and mechanised, contractors allowed only one meal break in order to maintain the pace of value-adding.[18] They resisted smokos, even if unpaid, because of the expense in stopping and starting the flow of materials and machinery.[19] To “fill in the pores” of the working day,[20] capitalists aim at a continuous flow of materials so that the labour power they have bought is never idle. To ensure that outcome, they developed the factory system wherein the flow of materials itself disciplines the application of labour power. Although that regularity is harder to achieve in construction,[21] building firms have made sites more like factories by pre-casting concrete sections off-site, and by ever more prefabrication.[22]

2B (i)(b) speed-ups: One way of making up for unavoidable breaks in the production of surplus value is to drive workers to go faster. By 1913, the micro-management of work in the United States by stop-watches was reminding Australian engineers of “the whip of owners or taskmasters.”[23] Until the ABLF stamped out sweating, builders offered the strongest man sixpence extra a day to “carry more bricks so as to run out the men who followed him.”[24] Piece-work is another method for driving down the unit cost of labour. No sooner had Melbourne stonemasons won an 8-hour day in 1856 than contractors imposed piece-rates. Other building workers fell victim to this cost-saving when they were paid according to how many square metres of flooring or bricks they laid. Whenever scaffolding is done by piece-work, safety suffers a double blow. Materials are “scamped”, and the job rushed. Skimping is one source of risk, but speed-ups are a more significant cause of harms. Intensification increases hazards on even the most secure and expensive scaffold.

A Brisbane job in 1958 spotlighted how the disciplining of labour time depends on physical force. The ABLF resisted the introduction of time books to measure how long it took to complete each task. In reaction, the contractor called in the Metropolitan Security Service.[25] Behind the boss and his MSS heavies loomed the force of the state through the police. Today, Messrs Construction Capital have the Australian Building and Construction Commission to enforce their “exclusive right” to the labour-time they buy, plugging the pores left by the pre-factory pattern of work on sites.

2B (ii) Turnover of money-capital: Money becomes capital only when it is active in its own expansion. Gold coins under the bed are not money-capital. Yet, no sooner are those commodity-tokens thrown into play, than they are in danger of being debased. The costs from remaining in circulation eats into money-capital, like a taxi-meter ticking over in a traffic jam.[26] If builders or their clients borrow, they pay interest before they draw rent. If they use their own funds, they lose the opportunity to invest those savings. In either case, their money-capital shrinks. The point of capitalism is to end up with more money-capital at the close of each circuit of production and consumption. Every capitalist is impelled, therefore, to cut the cost of money-capital by reducing the time during which interest falls due, or is foregone. In addition, the earlier a project is finished, the sooner its financiers can reinvest.[27] Clients reduce the costs of money-capital by offering a bonus to their contractor to finish earlier, and they impose penalties for running late.[28]

Executives also accelerate the turnover of money-capital in order to appropriate a second tranche of surplus value while a building boom lasts. Because fluctuations in the construction game are more frequent and extreme than the business cycle as a whole, the urgency to finish is greater than for other sectors. The financial pressure to hasten completion increases hazards by making labourers go faster during extended shifts. Bourgeois economists pretend that investors earn their profits by taking risks with money-capital. By flouting safety regulations, capitalists shift that risk onto the backs of their workers.

2B (iii) Subbies: Capitalists also reduce their exposure to the hazards of investing through the externalisation of time-costs for labour and for money-capital. Hence, they contract out as much work as possible, and pay as little as possible as infrequently as possible. The pressure, therefore, is always on the subbies to do their bit and move onto their next source of income, if they get paid at all. Despite computerised schedules and mobile phones, workers are still left hanging about so that subbies get in each other’s way, compounding the disorder, thereby contributing to the level of injury. Although the chaos endemic to construction adds to its dangers, the response to a known risk should be to heighten care. Blaming sub-contractors for the rates of injuries has always been a cop-out for lead contractors, clients and bankers. The responsibility rests with the corporations that impose time schedules that sub-contractors can meet only by stretching the law.[29] By not chasing the cheapest bids, the Parliament House Authority in Canberra had no fatality among 10,000 employees and kept injuries at 40 per cent below the industry average in the 1980s.[30]

Section 2 on “The il-Logic of Capital” has located the frequency of workplace injuries within the need that capitals have to ward off both competitors and workers by reducing costs, often through speed-ups. Section 3, “Fit the crime”, explores how this necessity finds expression in legal processes, first as patterns of practice and then as systems of thought. The analysis begins by documenting how judges and lawyers have indulged OHS offenders through the rarity of prosecution and lightness of penalties.

3. FIT THE CRIME
The level of compensated injuries confirms the relentlessness with which employers violate OHS regulations. Nonetheless, prosecutions remain infrequent, convictions rare and penalties minimal.[31] These patterns require explanation. Like the harms, the legal responses to them have been too consistent over too many years to be matters of chance.

3A Offences
From the 1970s, the Robens review of health and safety at work has overturned legislative principles, though not the outcomes. Rather than pile up regulations, the new Acts expected employers to provide safe environments. With that requirement came the prospect of treating every injury as grounds for laying a charge. Nonetheless, the rate of prosecution did not increase, with the authorities opposed to a tough stand.[32] Among the technical reasons for inaction are the exemptions allowed under “so far as practicable” clauses. The 2004 Victorian Act defined “practicable” in terms of the likelihood of the hazard or risk, its severity, the state of knowledge, the methods available for reduction and the costs of doing so.[33] Such exceptions invite the courts to rend a blanket protection into a tattered fig-leaf. For instance, the Victorian Full Supreme Court in 1989 had put the onus of proof for what was “practicable” onto the prosecution. In practice, “practicable” subordinates health and safety to the bringing of projects in on time and within budget. “Practicable” spells “still profitable”, as it had when mill-owners in the 1830s testified that it was “impracticable” to protect child employees from injury.[34] The 2004 amendments in Victoria failed to bring the definition of “reasonably practicable” up to that in most other States; the inserting of “reasonably” before “practicable” encouraged judges to excuse employers.[35]

3A (i) Manslaughter: After three deaths on the Gold Coast during the summer of 2003-4, the Queensland BLF stepped up pressure for industrial manslaughter legislation. Without that sanction, unionists feared that they would “continue to be murdered by ‘supervision’.”[36] In 1833, the British government had rejected manslaughter as the appropriate charge against a Master whose negligence had caused the death of a Servant because so severe an offence “would create a serious objection to the investment of capital.”[37] Over the next 170 years, workers got nowhere in their calls to have killing for profit treated as murder, at least in the second degree. By 2001, Victoria had launched but three prosecutions in over 100 years, and it had been the most active among the States.[38] The Victorian ALP abandoned its 2001 plan to treat offences against OHS laws as criminal,[39] and did not use its subsequent majority in the Upper House to make industrial manslaughter a real crime. In South Australia, the ALP administration blocked a private member’s Bill along those lines. The ACT included industrial manslaughter in its Crimes Act, while NSW added “reckless conduct causing injury”.[40] All the amendments fell short of treating at least some workplace fatalities as real crimes. Even worse, the placing of industrial manslaughter in the Crimes Act entrenched the flaw in all OHS legislation of seeing its violations as not fully criminal. Adding homicide to the OHS Act would be a step towards treating every injury as a ground for prosecution and all violations as crimes.[41]

3B Prosecutions
Tens of thousands of compensated injuries each year contrast to a handful of prosecutions. In Victoria, between 1900 and 1960, the Department of Labour laid an average of twelve informations a year for breaches of OHS provisions, which was one a month across the State. Between 1969 and 1971, problems of enforcing OHS changes on building sites brought a spurt of prosecutions to sixteen a year. Throughout the 1970s, Victoria averaged two prosecutions each week across all sectors.[42] That capitalists escaped prosecution became even more striking from the mid-1980s after OHS Acts required employers to eliminate the risk of harm. Notwithstanding this change, only 43 NSW building employers were brought before the courts in 1987, with 20 convictions. Thus, according to the law, employers bore responsibility for one injury in 750 (0.013%).[43] Each year between 1995 and 2000, Victoria recorded an average of 120 compensated deaths from injury and diseases.[44] The WorkCover Authority (VWA) launched only 100 or so prosecutions annually for all violations so that not even every killing saw an employer in court. Only one out of every 300 compensated harms resulted in a hearing, with 32,000 injury claims in 2003-04 producing 206 charges, or 0.6%.[45]

The VWA chased high profile cases, such as ESSO at Longford in September 1998, with its two deaths. That prosecution became the first under the 1985 Act to reach a Supreme Court jury. Meanwhile, the VWA had allowed persistent negligence elsewhere to slip through. What distinguished ESSO was media attention, public inconvenience and financial losses throughout the employing class. The government had to shift blame from its own laxness. The court pronounced ESSO guilty of a “welfare offence”. That conviction was possible only because proof of a violation did not demand evidence of evil intent. There was never any possibility of securing a manslaughter conviction. After the guilty verdict, ESSO executives persisted in their smugness because they had not been convicted of a real crime. The ESSO case was an exception that tested the rule about class bias and found it proven.[46]

Next year, the VWA reacted to fatalities in the construction industry with a “major crackdown” through a “dedicated field force” applying a “zero-tolerance approach”. This hard line was soggy at the core. “Zero tolerance” meant that an employer who had broken the OHS law got a piece of paper telling them to improve. Only if the firm failed to comply did the VWA contemplate a prosecution.[47] In the war on drugs, “zero-tolerance” is more than a caution through the mail. The favouring of corporates is stark through the opposite reactions to two white powders - asbestos and cocaine. The building fibres can kill in every case. The drug rarely does. People are in prison for life for peddling cocaine but not for profiting from asbestos during the decades after executives knew it to be murderous.

Reacting against calls for industrial manslaughter provisions, the Secretary of the Australian Construction Association contended in 2005 that “[t]he answer is not in further draconian legislation”.[48] Indeed, labourers will not benefit from tougher laws unless they are enforced with more rigour than existing Statutes. By 2007, NSW WorkCover had buckled to employer pressure to announce that 200 prosecutions a year out of 150,000 compensated injuries were too many. Offenders were 20 times were more likely to be advised than penalised.[49]

One further conclusion is undeniable. If the rate of prosecution for street crime were no higher than for injury in the workplace, governments would topple and shock-jocks claim the scalps of WorkSafe Commissioners. Commercial talk-back hosts howl against courts that let teenage burglars walk free, but are silent on the featherweight punishments for executives who breach OHS laws. Instead, the presenters sympathise with the corporate killers, portraying them as persecuted by union bosses.

3C Convictions
An employer unlucky enough to get cherry-picked for prosecution has every chance of getting off. Judges and magistrates redefine the offence out of court while lawyers plead that the accused had the best of intentions. The wording of OHS Acts assists in such manoeuvres. A guilty plea is no guarantee that a judge will record a conviction.[50] OHS violations are further trivialised when heard before magistrates, not in the County Court. In the lowest jurisdiction, safety consorts with traffic offences, the proceedings are rushed, decisions are rarely reported in the mass media or legal journals, and fines are treated with the contempt given to parking tickets.

3C (i) Judicial discretion: The bench pays employers a respect denied to other offenders since judges are not accustomed to sentencing the kind of people with whom they play golf, anymore than magistrates are at ease in penalising fellow Rotarians. In the eyes of the judiciary, character is like money in the bank, on which business people can draw at any time.[51] NSW Judge Murray Tobias voiced that ambivalence in 1993 in assessing the probity of Leighton’s Wal King. On the one hand, Tobias declared King to be “not of good repute, having regard to character, honesty and integrity”, and that he still did not “truly accept even now that the practice of the false invoices was dishonest.” Notwithstanding this assessment, Tobias could not bring himself to conclude that King was “deliberately lying” but rather had been “extremely busy”. In the end, Tobias judged King and a fellow executive to be “generally speaking, honest, industrious and honourable … generally respected and held in high regard in the commercial and personal circles within which they move.”[52] King, nonetheless, felt “wounded” by the proceedings because, as he put it, he was “not in the habit of having to defend contracts publicly.”[53]

A no less puzzling shift in judicial proceedings followed the death of a labourer at a demolition on 19 September 2002. The judge ruled that the principal contractor, Brambles, had had control of the premises, and therefore found the firm guilty for the actions of its sub-contractor. His Honour then accepted a plea from Brambles that it had not been in control after all and thereupon overturned his own ruling. A legal commentator warned outsiders not to interpret this topsy-turvy-dom as an instance of “Pass Go, Collect $200 and Get out of Jail”. [54] Denied the benefit a legal education, the dead man’s fellow labourers were left to wonder how Brambles had become the little man upon the stairs – there, yet not there, in charge, but not in control.

3C (ii) Defence: A lawyer explained how he arranged evidence to attract such sentences. He began “by looking for documentation”, that is, proof that recruits had signed forms to say that they had received a safety manual and had attended training sessions.[55] This paper trail argues that “the company has a real system in place”. “Real” equals “on paper”. The National Safety headline was apt: “Due diligence pays dividends”.[56]

Victoria in 2001 adopted a presumption of guilt for OHS violations while permitting two defences. Either the firm did not have the power to stop an illegal procedure, or it had tried to do so, but could not control its agent. Establishing the latter proposition involves the defence counsel’s shifting the blame to the victim. The accused will contend that the injured labourer failed to follow instructions. The firm’s lawyer submits that supervisors cannot watch each labourer every minute of the working day. That proposition seems reasonable until posed against the disciplining of labour time. If the victim had stopped for a yarn during working hours, the foreman would have come down on him like a tonne of concrete. Why does this intensity of supervision not apply to safety?

3D Penalties
Judges concur that OHS penalties should recognise the risks to labour without oppressing capital. A researcher summarised the consensus reached on the NSW Bench by the mid-1990s:

The legislation was designed to prevent, or eliminate, the risk of injury or death. The emphasis on prevention and the role of the enforcement provisions in securing prevention distinguished the sentencing process in relation to these offences from other criminal matters.[57]

Those assumptions did more to lower the level of fines rather than the rate of harm. Between 1920 and 1960, fines for OHS offences in Victoria had averaged 14% of the maximum penalty. After their monetary level increased from $2,000 to $25,000 in 1985, the fraction that judges imposed fell to 8% of the new maximum. Deaths drew an average fine of $15,000. Four out of ten guilty employers walked away on good behaviour bonds.[58] After penalties available in NSW shot up to $100,000, the average imposed was still only $530 in 1987.[59] Firms found it cheaper to pay a fines than to fix their sites. South Australia’s Industrial Safety and Welfare Act (1973) had set the maximum fine of $1,000 on an employer who breached a specific section and made failure to comply with a regulation punishable by up to $500; the average penalty, in 1982, was $164.[60] One inspector summed up his experience with developers: “If I were paying $80,000 a month on a $20 million loan, a fine of $500 would not stop me.”[61]

The death in October 2000 of a Leightons’ worker, Robert Sergi, led to fines of $325,000 four years later. No executives could be sentenced even to week-end detention or community service. Instead, they were given rehabilitation to become good corporate citizens. Leightons was not excluded from government contracts, which was the fate of any firm prepared to deal with the ABLF after its de-recognition in 1986. Leightons, however, did have to pay $90,000 to the children of the killed worker. That sum was one four-hundredth (0.25%) of the $36m. package that the corporation’s CEO, Wal King, took home to his five-car garage beneath a tennis court.[62] In an era when executives vote each other performance bonuses, they can afford to pay penalties out of their own pockets as crippling as the harms that profit-taking inflicts on labourers.[63]

Evidence that the courts take “a tougher line on repeat offenders” is scarce.[64] A Victorian study on the compliance at twenty construction companies a year or two after their OHS convictions in the early 1990s reported that only half met required standards. A quarter had made no improvements. One contractor had nine priors, but had not been excluded from the industry. Even where earlier offences do lead to higher penalties, there is no provision for excluding the repeat offender from the construction industry. Why is there is no regime of demerit points for OHS recidivists? Instead, the law reveals its majesty by excluding WA organiser Joe McDonald from job-sites for six years while Wal King flourishes.

Employers secure discounts on their fines through submissions about mitigating circumstances, by offering statements of contrition, or by entering early guilty pleas. This leniency contrasts with the ratcheting up of gaol terms for other violent offenders. In spite of the increase in the prison population, almost no white-collar criminals are behind bars.[65] There is no precedent from which to calculate the deterrent effect of seven years hard labour on a CEO for industrial manslaughter.[66] Most of the executives who are locked up made the mistake of swindling other capitalists. The gravity of that offence is revealed by comparing the $1m. value allowed on each life in the ESSO case with the $19.8m. fines imposed in 1995 on three ready-mix firms for price-fixing.[67]

Andersen Legal complained in March 2000 that OHS offences were attracting “increasingly large penalties, which in many cases seem to be disproportional to the seriousness of the offence.” By way of proof, Andersen’s spokesperson listed recent fines. The highest was on the NSW State Rail (SRA), with 21 priors, for which it had been fined a total of $310,000. The court then imposed a “disproportional” penalty of $420,000 on the SRA after two workers were hit by a train.[68] [Two years later, Andersen Legal was itself run down by its complicity in the Enron fraud.[69]]

Despite a pair of criminologists’ having documented the mildness pervading OHS punishments, they proposed a gentle pyramid of penalties to give business executives the space to exercise virtue.[70] This reliance on “manners gentle” might have had merit when sanctions were introduced in 1802. Time has run out. Capitalists have had long enough to repent for more than getting caught. Two other scholars suggested in 2002 that penalties be reduced for offenders who had performed “charity work”.[71] That bargain is sure to appeal to the likes of Transfield’s co-founder, and arts patron,  Franco Belgiorno-Nettis, who confessed to covering up corruption and strong-arm tactics “with a veneer of civilisation”.[72]

More than these daily doings impede the delivery of even the appearance of equity to labourers battling for health and safety. The role of law officers in maintaining social order prejudices the judiciary as much as it does the police. After the 1991-2 NSW Royal Commission into Productivity in the Building Industry detailed a sprawl of corrupt practices conducted through the Master Builders’ Association,[73] Commissioner Holland did not direct his wrath at the perpetrators, but railed against the unions for redressing those wrongs by taking the law into their own hands.[74] Why could he not see that the unions had taken the law out of the hands of law-breakers?  Also at that inquiry, Commissioner Gyles attacked the unions for their lawlessness when they insisted on standards for the removal of asbestos which were stricter than the regulations prescribed.[75] The measures that Gyles upheld as legitimate had been made into law because unions had engaged in the industrial lawlessness that he deplored. A hypothetical case clarifies which class enjoys the presumption of innocence: were a dogman to disable a crane in protest against its owners’ violation of OHS regulations, the law would treat the worker’s act of self-defence as criminal damage to property. However, the violation that provoked the damage is considered not truly criminal.

This third section has shown how the capitalist is favoured, first, by the legal codes, and then by a paucity of prosecution, the improbability of a conviction and the mildness of any penalty. The final segment now goes to the jurisprudential root of why the law provides employers with protections more effective than OHS Acts are at preventing wrongs against workers. To understand why OHS matters are corralled from real crimes is to locate the majesty of the law within the ruck of getting and spending.

4. “No fault or flaw”
The law speaks and acts for the state as a whole, and not just for one or other of its apparatuses, say, schooling: “all the needs of civil society must pass through the will of the state in order to secure general validity in the form of laws.”[76] Hence, the law overflows from every effort to slot it within the domain of ideas. On the one hand, jurists systematise ideology for capitalists, much as theologians did for feudal barons. At the same time, legal reasoning differs from other bodies of thought, such as historiography and aesthetics, because the law is implicated in the hour-by-hour contests that constitute the struggle between classes. Legal practitioners alternatively regulate how workers are deprived of the full product of their labour and how capitalists divvy up the profits therefrom. The issue is complicated further because the law as ideology also takes a double form. For instance, “law and order” is both the threat of repression and a promise of protection against arbitrary process. Similarly, the benefits of a “fair trial” and “equality before the law” were won from contests between classes, but these promises of justice continue to screen the inequities that those protests strove to overcome.

4A Equality before the law
4A (i) Class: Well before capitalism had been a tinkle in a merchant’s cashbox, legal systems were facilitating exchanges and protecting property.[77] Bourgeois law is novel because its practitioners guide a pair of exchanges crucial to the form of productive property that is capitalism. Property becomes capital only when engaged in accumulating values for self-expansion. To that end, the capitalists first buys human capacities in units of labour time so as to profit from the labour power that goes into commodities, which then must be exchanged to increase money-capital. To expedite those circuits, the bourgeoisie eradicated feudal privileges. Behind the banner of “equality before the law”, they inscribed privileges rooted in their control over property productive of surplus value. Capitalists could never have conquered had they extended their breaking the fetters of feudalism to redressing the inequalities borne by peasants.

Legal professionals acknowledge that disadvantages can flow from differences in income levels, job status, educational attainments, gender and ethnicity. Some lawyers compensate for the procedural imbalances by working pro bono, or by indulging defendants who represent themselves.[78] A smattering of practitioners will endorse the 1894 jibe made of the French novelist, Anatole France:

The poor have to labour in the face of the majestic equality of the law, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.[79]

The injustices noted by France are far from the whole truth about the law since its partiality derives from more than income. Confining concern to spending power or status obscures how “equality before the law” expresses the partiality enjoyed by the class that dominates the means of production. For example, the Common Law held that for a Servant to take risks was part of the employment contract (volenti non fit injuria). On paper, that hazard was countered by the Servant’s right to refuse commands that put her or him in harm’s way.[80] Fear of being sacked eroded that protection.

4A (ii) A wealth of wisdom: Over the winter of 1888, the source of a worker’s reluctance to exercise that right occurred to Sir Samuel Walker Griffith, (later first Chief Justice of Australia). As Griffith studied Marx’s Capital, he identified the fount of inequality in the bargaining relationship between capital and labour. Even after workers combined into unions, they remained at a disadvantage since employers had the resources to sit out a dispute. Once Griffith acknowledged that all new riches came “by the application of labour to already existing wealth,” he had to admit that there was “something radically wrong with the present system, under which capital is constantly accumulating in greater masses.” He accepted that giving the workers a larger share of their product could not, of itself, stop that concentration. The answer was to deprive capitalists of their productive property.[81]

When Queensland workers looked like putting Griffith’s insights into practice, he turned the guns on them, literally. As Attorney-General during the 1891 strike, he sent the military against the shearers at Barcaldine to take unionists to trial in chains. This assault confirmed his earlier views about exploitation, sealing his reputation as “Oily Sam”.[82] That move is a reminder that repressive elements in the law are never isolated from ideological ones.[83] While law professors are memorising Latin maxims, the army and the police are breaking strikes. To interrogate the law is to pursue this mixing of violence with rule-making.

4B Order in the courts  
Weighing up whether Griffith’s 1891 reaction was idiosyncratic or intrinsic to bourgeois law will require dissecting (i) the social character of its agents, (ii) the regimen of its practices, and (iii) the patterns of legal reasoning.

4B (i) personnel: The legal profession still draws the bulk of its membership from the better-off. To be admitted to Chambers, barristers pay ransoms which can appreciate into treasure chests on retirement. In the interim, fees and share portfolios keep many a lawyer happy as an apologist for capital. Outsiders prosper by cloning themselves into the dominant model of class, ethnicity and gender. Yet, even if all legal practitioners were the offspring of builders’ labourers, the class bias of the law would stand.

4B (ii) practices: Lawyers, like the rest of us, become what they do. Memorising cases brainwashes recruits. The study of contract law, for instance, encourages them to consider all human conflicts through the prism of property transfers or monetary exchanges.[84] In the process, professionals delude themselves that undergraduate degrees instill objectivity, whereas such training inculcates the illusion that judges are interpreting the law as a regime of precedents. Of course, the formulation of legal doctrine remains remote from the work of the majority of law graduates who serve as technicians for business by drafting contracts, concocting tax-avoidance schemes, carrying out the routines of conveyancing, and smoothing a multiplicity of commercial encounters. Lawyers elevate such doings above those by other agents of capital, such as accountants, whereas few in either cohort think

beyond the limits which the capitalists do not get beyond in life. Lawyers are consequently driven, theoretically, to the same problems and solutions to which material interest and social position drive the capitalists in practice.[85]

A barrister might despise a business client as an unlettered oaf, yet interpret the law and the world in conformity with how the defendant must behave to survive as a capitalist. Legal reasoning can prevent jurists from penetrating even as far as that. When criticising the Royal Commissioner into the ESSO-Longford explosion for his account of its “real causes”, Professor Andrew Hopkins showed that the retired High Court Justice had stopped his pursuit at the boundaries set by the ascription of criminal responsibility, which was short of the causal chains traceable by a systems engineer, or political economist.[86]

Two of the styles of interpretation that are drilled into undergraduates deflect attention from the links between legal reasoning and social conflicts. Under the first treatment, the courts claim to apply only what the drafters of an Act had intended. Nonetheless, across 86 years, the High Court twisted “absolutely free” in Section 92 of the Constitution from its drafters’ original intent of prohibiting tariff barriers between the States into a bar against nationalisation and road taxes.[87]

In the second method, judges swear that they limit their interpretations to the wording of the Act, independent of every consideration other than a dictionary and an 1846 book on logic; this “black letter” game also deteriorates from “O’Grady says” to “I say O’Grady says”.

Both legal sects revel in the intricacies of logic-chopping, their self-esteem dependent on a mastery of case law and a talent for picking their way through precedents. Advocates engage in verbal gymnastics to secure sectional interests behind a display of terminological exactitude. Hence, an injured labourer who attends court expecting justice finds lawyers from each team behaving like Humpty-Dumpty in Alice Through the Looking-Glass:

“There’s glory for you!”
“I don’t know what you mean by ‘glory’?”, Alice said.
“I meant, ‘There’s nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty-Dumpty said in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”
The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is”, said Humpty-Dumpty, “which is to be master – that’s all.”[88]

In a class society, the courts are left to wrangle about how to apply prior mastery over the production of wealth, with judges welding original intent to black letter as the occasion demands.

A third approach is openly contextual, with its devotees seeking to connect their interpretations with changes in the economy.[89] The outcomes are not always progressive, as was shown in 2006 when the High Court advanced the global interests of corporate capital by validating WorkChoices under the corporations power (Section 51 xx), which some framers of the Constitution had hoped might safeguard workers and consumers against price-fixing cartels.[90] Although constitutional cases are couched in abstruse precepts, they too regulate capital and labour. For example, after forcing the fathers of the Australian Constitution to accept a right of appeal to the Privy Council, Colonial Secretary Joseph Chamberlain assured the House of Commons in 1900 that he had done so to protect “the private interests of investors”.[91]

4B (iii) philosophising
While Chamberlain’s intervention was not unique, it is too instrumental to serve as a starting point from which to explicate the relationships between the law and the needs of capital.  Those connections deserve to be approached through layers of doctrine and practice. This chapter concludes by identifying six elements which contribute to the class bias in the law: (a) contracts; (b) intent; (c) exploitation; (d) roguery, (e) individualism, and (f) immunity for corporates. As schematic as the exploration remains, this chapter holds an advantage over legal reasoning in not reducing processes to instances, patterns to accidents.

4B (iii)(a)Contracts: Contracts bring the three styles of interpretation together under the roof of commerce. For the lawyer, there is little or no thinking outside the contract. Family relationships come to be viewed through their implied presence. Bourgeois political philosophy and economics assume that societies are formed by autonomous individuals entering into Rousseauian contracts. Their ubiquity in thought and deed means that any jurist who seeks to hedge the power of an individual capital, is, in turn, constrained by a corpus of contractual precedents which had the growth of aggregate capital as its reason for being. Whether those links extend beyond the everyday affairs of the profession to establish the law’s philosophical matrix is the point in contention.

A majority of commentators represent jurisprudence as reasoning to achieve justice. More conscious champions of market forces have countered that hypothesis by integrating their analysis of law with that of economics. They treat rights as commodities to be traded at optimal prices. By viewing the law through the lens of a cash nexus, the “law-and-economics” school makes explicit much that is covert in the standard accounts. Its members discern in the Common Law a field traversed by economists, legislators and corporate executives as often as by jurists. Accordingly, what is “just” is whatever minimises the cost for the parties to a contract. The objective of legal thought, therefore, is not the pursuit of an ideal labeled “justice” but an optimal allocation of resources. Some equate the pair. Others see their mutuality confirmed by the interpenetration of economic and legal topics such as freedom of contract and property rights. The law-and-economics school illustrates this overlap from the difficulties that the law has in holding either corporations, or their officers, responsible for torts and Adam Smith’s account of the principal-agent problem which occurs wherever owning is separated from management. Such examples, by themselves, can do no more than invite us to ask whether the law is one more system for promoting economic efficiency, parallel with those conducted by accountants, economists, engineers and managers.[92] If so, the explanation resides beyond their techniques.

Legal doctrines have been distilled from centuries of social upheaval, leaving the logic of the law as the residue of victories, defeats and compromises. Jurists codify courtroom decisions that follow from multiplicities of social conflicts. Legal traditions do not inscribe a class bias in the law; rather, those legacies are the coagulation of the outcomes from centuries of conflict.[93] Because class struggle keeps one class dominant, not omnipotent, the relative autonomy of the law is understood best as an unstable consequence of the relative strengths of contending classes.[94] For instance, OHS laws resulted from the growing power of labour. In extracting internal coherence, the courts crafted a rationality of their own, which, Lord Chief Justice Goddard admitted in 1951, is not always logical.[95] Rarely is that malaise more telling than in the effect that the Common Law doctrine of “intent” has on occupational health and safety.

4B (iii)(b) Intent: For an action to be considered criminal, its perpetrator must intend to commit harm, that is, to possess a “guilty mind” (mens rea).[96] The rare OHS conviction depends on establishing negligence not malice, recklessness rather than rapacity. A prosecutor has little hope of convincing a jury that a builder set out to harm a labourer. As a Sydney employer put it in 1908: “A contractor does not take a job to slaughter men; but at the same time he has to make a living.”[97] Notwithstanding this denial, his kind made their living by taking away the lives of rock-choppers in the Sydney sewers.

Apart from producers of snuff movies, capitalists do not hire workers for the purpose of injuring them. Rather, the intent of every boss is to benefit from an application of the labourers’ capacities. The employers as a class do not intend to injure their workforce, although their profitability depends on practices that lead to injury, and repeatedly so. No one denies that profit is the intention of business. Indeed, corporation law obliges company directors to maximise returns for shareholders. Nonetheless, OHS laws fail to connect an intent to profit with an intention to harm. The employers accept some element of risk-taking; they intend to increase profit; they do not intend the harm itself. So it goes.

Because a guilty mind is so often impossible to demonstrate, legislatures have enacted statutes to remove the need to prove intent in a few instances. For example, employers now have an absolute liability to pay premiums for workers’ compensation, and the courts accept that chronic forgetfulness is no defence. However, judges undermine laws that impose a lesser liability on an employer who fails to ensure that his workplace is safe. They set the highest test of intent for securing a conviction but a lower one when setting the penalty.[98] In presiding at an OHS case, the magistrate performs like the little figure in a cuckoo clock. On first appearance, his Worship categorises the violation as criminal and insists on the toughest standards of proof, that is, a guilty mind. Should a prosecutor manage to establish gross negligence leading to injury, this magistrate swivels out of sight to be replaced by a look-alike who treats the offence as not being a real crime, hence meriting only a modest fine and a homily to behave better.

This double standard is not the result of slackness in the drafting of statutes or some flaw in the doctrine of intent. The bias arises from the inability of bourgeois ideologues to connect the necessity that capital has to expand with the prevalence of harms. At issue is whether “accidents” serve any purpose. In 2007, fifteen Australian workers suffered a serious injury every hour, one died each day from injuries and four more from workplace diseases.[99] Few of those torts are a matter of gross negligence on the part of employers or their agents. The harms are part of the norms of profit-taking. The courts, however, consider each injury as an incident rather than as a component in that process.[100] This compartmentalising further dissociates hazards from their role in maximising profit. The difficulties that legal professionals have in pursuing that connection is abetted by the peculiarity of the employment relationship between capital and wage labour. Its exploitative core is concealed in an exchange which seems to be just.

4B (iii)(c) Exploitation
A wage appears to be equitable when it covers the expenses that workers meet in bringing their labour power to market. However, if all commodities were exchanged at their full cost of production, aggregate capital could never expand and individual capitals could do so only by more mutual swindling. Expansion is possible because labour power is unique among commodities. Its application results in commodities which embody more labour-time (value) than the costs of its reproduction.[101]

Every strand of bourgeois thought, whether in economics or the law, denies that exploitation is intrinsic to the exchange between capital and wage-labour.[102]  Conventional wisdom holds that employers who pay the wages prescribed by law have given “a fair day’s pay”. The owners of productive property rebut all intention of robbing their employees. Indeed, expropriation of surplus value is not the same as filching some part of an Award wage. The expropriation of surplus value is distinct from the paying of wages at a level beneath the socially necessary costs of reproducing labour power. Property need not be theft. Notwithstanding the divide between exploitation and robbery as concepts, capitalists weave them together in their practices. In turn, their OHS negligence becomes bound up with financial misdeeds, the business “plan” combining swindles with the speed-ups and the skimping that increase the injuries. By documenting this tangle of misbehaviours, it will become permissible to ask why legal reasoners have not used the interlocking of offences to refashion the doctrine of intent to make OHS violations real crimes.

4B (iii)(d) A culture of rogues: In the building game, an honest employer is hard to find. Stealing from workers happens on the hour. In the 1880s, Master Builders pocketed the penny a day that labourers paid for insurance. One hundred years later, employers were not paying insurance levies for compensation.[103] In 2007, the Workplace Ombudsman prosecuted one of the actors in a government TV commercial promoting WorkChoices for underpaying two of his teenage brush-hands by $13,000.[104] At the same time, the non-payment of Superannuation contributions by employers was so rampant that the Australian Tax Office (ATO) operated a task force to track down defaulting bosses. After the ATO retrieved $93m. from 234 offenders, the Deputy-Commissioner confessed that they were “only a small part” of the offenders who, he admitted, were very difficult to catch.[105]

The charge-sheet against employers does not stop at underpayment. Contractors infringe several laws to retain the largest possible slice of surplus value as their profit after tussling with bankers, clients and suppliers. Those contests impel employers to break laws on the environment, safety and taxation. Messrs Construction Capital prosper on tax evasion sanitised as avoidance. “Phoenix” companies turn their tax and Super liabilities into grounds for bankruptcy, only to rise from the ashes having driven their creditors into genuine insolvencies.[106] The survivors flourish on collusive tendering and price-fixing.[107] Contractors also gain from their despoliation of the natural, built and cultivated environments.[108]

Capitalists who resist these norms are the most likely to be eliminated by the competitive force of the market. The imperative behind making workers take risks is felt irrespective of the contractors’ morals. They may be kind-hearted, but once they allow conscience to guide more than their PR releases, they are in danger of being driven out of business. Even conglomerates do not operate in circumstances chosen by the gun hired from the St James Ethics Center.

As a result, labourers deal with regiments of employers who intentionally break several laws. When a worker is injured on-site, the legal status of that harm is not increased by these other offences. Nor will a conviction over any of those matters be mentioned at an OHS hearing. Indeed, hardly more of them are prosecuted than are OHS violations, and when they are, the courts again consider few of the charges to be real crimes.

Bourgeois jurisprudence shows its class nature by not handling OHS offences in the same way as it does the felonies or misdemeanours for which the prosecution is relieved of the need to establish intent. For instance, when snatching a hand-bag results in breaking the victim’s arm, the law looks upon that injury as if it had resulted from a deliberate assault. The guilty mind essential to establish criminality carries over from the intended theft to its unintended consequence as bodily harm. By contrast, prosecutors do not attempt to connect OHS offences with the absolute liability offence of failing to pay compensation premiums. Yet those violations are sides of the same coin around building sites. Aggregating them on a charge sheet suggests a means to lever OHS breaches closer to being punished as real crimes. That such a prospect is missing from the debate is a tribute to the hegemony of the bourgeois version of individualism as autonomy.

4B (iii)(e) Individualism: The law holds people responsible for what they do and not for what they are.[109] This premise avoids the fact that what capitalists are able to do in relation to a wage-earner expresses their being capitalists, that is, their personifying capital, just as the wage-slave embodies labour-time. Without control over the means of production, capitalists are not in a position to harm: to harm, they have to possess or control property that is productive of surplus value.

While ideologues were portraying capitalists as autonomous individuals, the controllers of productive property knew better and oversaw the expansion of their capitals by aligning three forms of collectivism - joint-stock, limited liability and the corporation. From the 1820s, the joint-stock company allowed individuals to pool their money-capitals. That combination, however, confronted each capitalist with the danger of being held responsible for the debts incurred by the combination. By 1860, lawyers for “limited liability” had solved the problem of how to be “in” for the profits, yet “out” for the losses. Henceforth, investors were not liable for more than the sums they had subscribed. Their other assets were quarantined.

The next generation of investment vehicle – the non-Chartered corporation - came under threat of arbitrary processes from legislatures promoting public health or breaking up Trusts. During the final quarter of the nineteenth century, the US Supreme Court allowed “due process” rights to corporations, granting them the status of a “legal person”.[110] Jurists had landed themselves with another paradox. If only a living person can form an intent, how were the courts to apply the criminal law to this half-thing/half-person? The good news around the boardrooms was that corporations had “no body to kick, no soul to damn”.[111]

Although the law assumes that corporations face difficulties in acting, it accepts that they can fail to act. Nonfeasance is possible where misfeasance is not.[112] How is it that an entity which cannot act is held accountable for conforming to its essence? Injured labourers should be grateful for this instance of il-logic within the law since establishing failure to act offers them their best chance of convicting a corporation, or its agents.

4B (iii)(f) Corporate immunity: To bring a corporation to book, the law has to uncover a “directing mind”. Hence, the prosecutor tries to identify a living person (official) as responsible for the harms of a legal person (corporation). With knowledge distributed throughout organisations, defence lawyers play ducks and drakes with the “directing mind”, turning the doctrine of identification into an escape hatch from the efforts by prosecutors to aggregate the decisions that led to an offence.[113] In a 1995 case, the judge determined that the failure by a supervisor to follow orders had been the cause of a worker’s death, before going on to rule that the employing corporation was not guilty, despite its not having had a system to ensure that its supervisors were carrying out company procedures.[114] In 2003, the Victorian Supreme Court overturned an OHS conviction of a company official because the prosecution had not proved that the accused had held all the knowledge necessary to be deemed responsible. A NSW judge went further in 2007 by finding that company directors were not liable unless “complicit in contravention”.[115]

The obstacles to securing a verdict against a corporation or its senior officials become clearer by contrasting their prospects for acquittal with the fate of an owner-operator. Suppose both types of employer have allowed labourers to climb without harnesses, in contravention of OHS laws. For the small business, the chain of command goes from the owner to himself. The corporation, however, is a multiplicity of living persons. The upshot is that on-site proprietors are vulnerable while corporations and their executives enjoy “de facto immunity”.[116]

5 Class analysis
The interpretation of law presented above suggests three further questions. First, could this account of “killing no murder” have been reached through the application of legal reasoning? It appears not. Most of the articles cited in the footnotes are critical of some aspect of OHS law, with a few of their authors also rejecting capitalism. However, none of those authorities takes the appropriation of surplus value through the disciplining of labour-time as the pivot for analysis. Instead, the pressure on lawyers to display a mastery of case law enmeshes radicals in the ideology that they set out to unravel. Some disparage attempts to locate legal processes within the dynamics of capital expansion as “economic determinism”.[117] Disdain for the massiness of materialism is more likely to end in sophistry than in clarity about class.

The second question flows from this answer to the first: will the law ever consider killing, when done for profit, as murder? Well … it is conceivable that working-class pressure on a reform-minded legal profession - over a further 200 years - could extend the rule about the unintended consequences of a felony to treat some OHS violations as real crimes. What will forever be impossible under capitalism is to consider the appropriation of surplus value as an offence comparable to the non-payment of wages. The injured labourers who receive all their prescribed entitlements have no stem connecting their workplace harms to other offences by their employers. Forging that connection will require legal reasoners to injure aggregate capital instead of steering its expansion.

Our third question begs for an answer to why it is that progressive lawyers have difficulty in promoting so temperate a shift in class relations, unless the answer lies in those relations. As pointed out earlier, lawyers become agents of capital whenever they cannot think beyond the limits that the capitalists do not go beyond in their profit-taking. The failure among the establishment to reason out how killing for profit might be treated as murder is to be expected. That this bias has overtaken many in its radical wing is partly the result of the triumph of neo-liberalism since the 1970s, with its Schools of Business and Management. Nonetheless, even when the Left was on the ascendant in academe, legal progressives were burdened with an ideological impairment. Marxism-Leninism recognises that the creation of socialism requires driving beyond the seizure of the capitalist state: that apparatus must then be smashed by working people’s emancipating ourselves through the creation of new forms of power. There’s the rub. Progressive lawyers – whether as once-upon-a-time social democrats, or now as New Labour - aimed to rewrite the content of the laws and then to enforce those reforms. While they allowed space for worker control over safety, they showed less enthusiasm for workers’ remaking the law as both content and form, on and off sites.[118] The reluctance of radicals to break through the web of legal reasoning in order to consider OHS violations as real crimes expresses a politics which dares not contemplate destroying the bourgeois state.

This chapter began by observing that statistics on injury and disease remain abstract until situated within the struggle between classes.[119] Data and concepts gain concreteness within the context of the exploitation that capital achieves through the disciplining of labour-time. One strand of intellectuals dismisses this approach as metaphysical, on the grounds that such conjectures are not open to refutation.[120] For the materialist dialectician, refutation comes from human activity, and is not to be attained through linguistic analysis or induction. Disproof, like proof, “must be derived from history itself.”[121] Only then, as Marx wrote, can the “mysteries which mislead theory into mysticism find their rational solution in human practice and in the comprehension of this practice.”[122]

The test of practice for the class analysis that informs A framework of flesh was set forth in statements by two Secretaries of the Victorian Branch of the ABLF. In 1916, Henry Hannah remarked: “Imagine the master builders, as we know them, sharing their profits with us after the way they have fought to prevent us securing a living wage.”[123] Nearly fifty years later, Norm Gallagher rejected the possibility of a peaceful transition to socialism: “The way the employers were opposing our demands, I couldn’t see them handing over the means of production to the workers without a revolution.”[124]

The way to refute this chapter’s representation of the law and jurisprudence as instruments of class rule is by proving those two union officials wrong about the implacable nature of the class struggle. The bar for doing so need not be set very high. Not every boss will need to emulate Civil & Civic by profit-sharing. Still less will the owning class have to surrender the keys to their earthly kingdom. All that is required to refute the hypothesis that killing is not murder when done for profit will be for the ALP government to instruct the Australian Building and Construction Commission to harrow Messrs Construction Capital with the zeal that the ABCC’s enforcers have used against builders’ labourers and their unions as they battle for health and safety.

Marxism