Industrial manslaughter – are you prepared?

Industrial manslaughter – are you prepared?

WRIQ has partnered with law firm MinterEllison to breakdown changes to industrial manslaughter offences and share important advice to help prepare businesses across Australia.

In recent years, there has been significant national movement to introduce industrial manslaughter offences into relevant state and territory work, health and safety (WHS) laws.

“Expectations on businesses are changing and increasing,” Waste Recycling Industry Association Queensland (WRIQ) CEO, Mark Smith says.

“We’ve started to see this with regulators and more recently with financial institutions.”

The aftermath of any serious workplace safety incident can be challenging, but in the case of a workplace fatality, it can also have long-lasting effects on the deceased person’s family, colleagues and business reputation.

The offence of industrial manslaughter commenced in Queensland (QLD) 23 October 2017.

The offence was introduced as a potential consequence for situations where criminal negligence resulted in a fatality of a worker in the workplace.

Since that time other Australian jurisdictions have introduced similar, though not identical, offences into their respective work health and safety legislation.

Brisbane Auto Recycling became the first entity to be convicted of industrial manslaughter under the QLD Work Health and Safety Act 2011 provisions, after a worker was fatally struck by a reversing forklift at the company’s wrecking yard.

The District Court of QLD found that the business had no effective safety systems in place to separate persons from mobile plants or to supervise the operators of mobile plants. Brisbane Auto Recycling was fined $3 million.

The directors were also charged with Category 1 offences, but not industrial manslaughter, and given a 10-month suspended sentence of imprisonment.

The WHS prosecutor has since charged an individual director in Gympie, QLD with industrial manslaughter after a worker was killed when an overloaded forklift flipped and struck the worker.

This will be the first prosecution against an individual for industrial manslaughter.

THE QUEENSLAND OFFENCE 

Mark Smith says more action needs to be taken against businesses engaged in illegal activity.

What should businesses be doing to prepare for manslaughter laws?

WRIQ and law firm MinterElllison will be launching sessions for industry directors, owners and people managers about changes occurring in QLD.

It’s important to note that the maximum penalties for industrial manslaughter are 20 years imprisonment for an individual or $10,000,000 for a corporation.

“We are committed to supporting our members and promoting a safe, sustainable industry in QLD,” Smith says.

Currently in QLD, industrial manslaughter may be committed by either a person conducting a business or undertaking (PCBU) or a senior officer of the PCBU.

A person is a senior officer of a PCBU if they are concerned with or take part in the PCBU’s management.

A PCBU or a senior officer may be charged with industrial manslaughter if: a worker – as opposed to other persons such as a member of the public – dies in the course of carrying out work for the PCBU or is injured while carrying out work for the PCBU and later dies; the conduct of the PCBU or senior officer causes the death; and the PCBU or the senior officer is criminally negligent.

Conduct will be deemed to have caused death if it substantially contributes to it, i.e. conduct does not have to be the only cause of death.

Criminal negligence requires a court to be satisfied beyond reasonable doubt that the conduct was such a gross departure from the

standard of care that was owed in the circumstances and showed such disregard for the life and safety of others that it amounts to a crime.

This is a very high standard, and the onus is on the prosecution to prove it.

THE NATIONAL APPROACH 

The industrial manslaughter offence has existed in the ACT since 2004 as part of the Crimes Act 1900. Since the QLD offence was introduced in 2017, both Victoria and the Northern Territory have introduced a similar offence.

These offence provisions are structured differently from the industrial manslaughter offences under QLD legislation, as the provisions apply where a person owes another person a safety duty and they engage in negligent conduct in breach of that duty, which causes the death of another person.

This model is also picked up in the provisions included in Western Australia’s Work Health and Safety Act 2020.

Further, partially as a result of the different framing, the current offences in QLD will not apply in respect of a death of an ‘other person’ even though they are owed a duty of care under the safety legislation.

This means that, for example, a PCBU or its senior officers could not be charged with industrial manslaughter in QLD in respect of the death of an ‘other’ person, whereas an officer could be charged in respect of an ‘other’ person’s death in Victoria or the Northern Territory.

In addition to these developments, the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2020 was introduced into the South Australian Legislative Council in late September 2020.

Shortly after this, there were renewed calls for similar laws to be implemented in Tasmania, however, no legislation has yet been brought before the Tasmanian Parliament for consideration.

NSW has opted against creating a specific industrial manslaughter offence, and instead introduced amendments in late 2019 to clarify that the death of a person at work can constitute manslaughter under the Crimes Act 1900.

The status of industrial manslaughter offences in Australia. Source: MinterEllison 2020.

IMPACT ON ORGANISATIONS 

While the introduction of the industrial manslaughter offence has increased the risk profile for duty holders, in practice its impact will be limited.

Manslaughter under the Criminal Code has been available to prosecute deaths arising from workplace accidents for some time, and has only been used in the most extreme cases.

Importantly, Smith says what is required of PCBUs and their officers under the WHS laws has not changed as a result of the industrial manslaughter provisions.

“It’s really important that we see more action taken on those businesses engaged in illegal activity,” he says.

“Businesses engaged in illegal activity are probably not just ignoring environmental and tax laws, they probably have little regard for doing the right thing – the legal thing. This must be tackled.”

For more information contact Mark Smith at mark.smith@wriq.com.au or click here

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