By Zeb Holmes and Ugur Nedim
There is a growing push for the introduction of industrial manslaughter to be introduced as a discrete offence across Australia, in order to prescribe harsh penalties for acts or omissions by employers that result in the deaths of their employees.
The calls come in the wake of revelations that while overall workplace fatalities have increased since 2013, the number of criminal prosecutions and fines issued to employers has fallen.
NSW Labor spokesman for industrial relations, Adam Searle, sees current laws as inadequate, pointing to inconsistencies in approaches across Australian jurisdictions as an indication that industrial manslaughter is not being treated as seriously as it should be.
Safe Work Australia’s director of evidence, Kris Garred, agrees, calling for a unified approach across the nation.
Here’s an outline of existing industrial manslaughter regimes across Australia.
Section 34D of the Work Health and Safety Act 2011 (Qld) prescribes a maximum penalty of 20 years’ imprisonment and corporate fines of up to $10 million on senior officers of a person who carries out a business or undertaking where:
- a worker dies or in the course of carrying out work for the business or undertaking, or is injured and later dies; and
- the senior officer’s conduct causes the death; and
- the senior officer is negligent about causing the death of the worker by the conduct.
A “senior officer” is:
- if the person is a corporation—an executive officer of the corporation; or
- otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.
A person’s conduct “causes” death if it substantially contributes to the death.
The Queensland government created a new role of ‘Workplace Health and Safety Prosecutor’ with the power in order to enforce the provision, as well as others.
Business owners and managers were placed on notice about the law after a Queensland electrician, who traded as Cold Spark Pty Ltd, was found guilty of manslaughter and sentenced to seven years in prison.
The court in that case found that the business owner failed to pay enough attention to his safety obligations, resulting in the tragic death of a young labourer on a building site.
“The case is important because it sets the benchmark for the new WHS industrial manslaughter offence in Queensland (and no doubt similar offences across the county),” remarked Alan Girle, Director, Australian Business Lawyers & Advisor.
Australian Capital Territory
Similarly, section 49D of the territory’s Crimes Act 1900 prescribes a maximum penalty of 20 years’ imprisonment and 2,000 penalty units on senior officers of employers where:
- a worker dies in the course of employment by, or providing services to, or in relation to, the employer; or is injured and later dies; and
- the senior officer’s conduct causes the death of the worker; and
- the senior officer is—
- reckless about causing serious harm to the worker, or any other worker of the employer, by the conduct; or
- negligent about causing the death of the worker, or any other worker of the employer, by the conduct.
A penalty unit in the ACT is $140 for an individual or $700 for a corporation.
No prosecutions have yet been brought under the section.
The Labor State Government has pledged to introduce new industrial manslaughter laws if it wins the election on 24 November 2018.
The offence would impose a maximum 20 year prison sentence and/or fines of over $16 million on employers who negligently employers who cause the deaths of their workers.
The government has proposed to extend the reach of the laws to suppliers, contractors, routine maintenance workers, site visitors and passers-by.
The LNP has yet to announce its position on the proposal.
The Labor Government has foreshadowed introducing industrial manslaughter laws during its first term in office, which ends on 13 March 2021).
But this was not a campaign promise, and some Labor MPs are reported to oppose the push by unions to introduce such laws.
The CFMEU has told a federal parliamentary inquiry that industrial manslaughter laws should be introduced in the state, arguing that financial penalties are not an effective deterrent to ensure workplace health and safety.
The current Liberal Government has no plans to introduce new industrial manslaughter laws in that state.
In the lead-up to the last election on 3 March 2018, the opposition Labor Party promised to introduce laws similar to Queensland elected.
It appears from opposition media releases that it Labor carry the same promise to the next election, which will be in or before 2022.
The Labor government’s view on introducing industrial manslaughter laws is unclear, but it has committed to introducing more severe penalties for workplace health and safety offences that cause deaths, either under current state provisions or a new regime.
Despite unions lobbying for change, neither major party has expressed an intention to introduce new industrial manslaughter laws.
New South Wales
The NSW state government considered the introduction of industrial manslaughter laws in 2005.
However, the governing LNP has made no policy announcement policy regarding the issue.
New South Wales Labor has promised to introduce 25-year prison terms for employers responsible for workplace deaths, if the party is elected on 23 March 2019.
Mr Searle says a state Labor government would significantly augment work safety laws and ensure compliance and enforcement.
“A key part of this will be a new law to properly address the issue of workplace death where it occurs as a result of breaches of work safety obligations,” Mr Searle said. “We will consult with unions, employers and the community about the best model and the level of penalties, including length of gaol terms, bearing in mind that manslaughter has a maximum penalty of 25 years’ gaol.”
It is hoped the adoption of such laws will lead to employers taking their responsibilities for workplace health and safety seriously.