Federal Election 2019 – key workplace issues 05: Industrial Manslaughter

Over the term of the Coalition Government, there has been a noticeable shift in the way business, regulators and the community are thinking about and responding to issues of workplace safety, particularly when it comes to deaths in the workplace.

The tragedy of recent workplace deaths, particularly at the Dreamworld amusement park and Eagle Farm Racecourse in Queensland, catalysed a reaction that resulted in government reviews, legislative reform, and invigorated regulators across Australia.

Indeed, two recent cases have shown that the increased regulatory scrutiny of company officers for WHS breaches:

• In January, Maria Jackson, 72, was fined $10,000 and sentenced to six months' jail after pleading guilty to recklessly endangering a person at her business who died from fatal head injuries; and
• In February, Gary Levin, a director, was sentenced to 12 months in prison for reckless conduct, which contributed to the death of a roofer. His company was also fined $1 million.

While these cases involved egregious breaches by officers with particular involvement and knowledge of the risks, they underscore the trend of regulators to pursue individuals for WHS breaches.

In this context, the resurgence of industrial manslaughter laws should come as no surprise. Nevertheless, industrial manslaughter laws are the source of significant concern for businesses and their officers who want to know their exposure to potential gaol time.

The ACT has long-standing  industrial manslaughter laws and the Queensland Government followed suit in 2017, following the Dreamworld and Eagle Farm deaths. In Victoria, the recently re-elected Andrews Government committed to the introduction of industrial manslaughter laws and record penalties for businesses that negligently cause a death in the workplace, and NSW Labor has made a similar commitment.

Potential national laws?

In December 2018 the ALP National Conference passed a resolution affirming the Conference's support of industrial  manslaughter laws through amendments to the WHS legislation or State and Territory criminal codes in the first year of a Shorten Government.

The Conference also endorsed the recommendations of the Senate Standing Committee on Education and Employment set out in the “They never came home” report, including:

• developing a policy stipulating that all industrial deaths be investigated as potential crime scenes;
• establishing a dedicated WHS prosecutor in each jurisdiction; and
• amending the model WHS laws to provide for unions, injured workers and their families to bring prosecutions.

Undoubtedly, the endorsement of the Conference is significant as it may signify that industrial manslaughter is a policy priority of an ALP Government, which is likely to encourage its State and Territory counterparts to follow suit.

In response to the Report, Coalition senators opposed the introduction of new national industrial manslaughter laws. However, given that the regulation of work health and safety, and criminal law is largely a function of State and Territory Governments, business should expect that the push for industrial manslaughter laws will continue.

So what will that mean for officers of businesses in affected jurisdictions?

Businesses with effective WHS management systems and officers who are meeting their due diligence obligations are unlikely to be significantly affected by industrial manslaughter laws.

In Queensland and the ACT, an employer or senior officer is guilty of industrial manslaughter if:

• a worker dies in the course of employment;
• the conduct of the employer or senior officer causes the death of the worker; and
• the employer or senior officer is reckless about causing serious harm to the worker or negligent about causing the death of the worker.

While it applies more broadly than other penalty provisions under the WHS Legislation, it sets a very high bar and implies that only the most serious breaches would fall foul of industrial manslaughter laws.

Nevertheless this is no reason for complacency. In all States and Territories, even where there is no industrial manslaughter laws, as there are significant penalties under WHS and criminal laws for safety breaches that cause the death of workers. This includes personal exposure for officers and potential gaol time.

Then how do businesses prepare for the introduction of industrial manslaughter laws?

Answer: By ensuring the health and safety of workers while they are at work, that the work carried out does not create risk to the health and safety of others, and that officers are performing their WHS due diligence obligations in relation to their business' WHS management.

This can involve:

• ensuring all officers are receiving regular refresher training;
• reviewing existing WHS management systems to ensure they remain up-to-date and effective;
• identifying existing Codes of Practice which may apply and assess compliance levels;
• ensuring sufficient resources are assigned to management of WHS issues; and
• promoting genuine WHS discussions at senior management meetings.

While it is unlikely that the industrial manslaughter laws create additional exposure for businesses and officers who are meeting their WHS obligations, the increased public and regulatory scrutiny of WHS management means that it remains critical to review risks and systems in your workplace to ensure you are meeting your WHS obligations.  

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