Earlier this month, a man in his thirties was fatally injured in a workplace accident in Sydney. Paramedics found the man with his head caught inside a piece of machinery at a pallet factory. He is believed to have suffered major head injuries and blood loss before dying at the scene.
Tragic cases like this are, sadly, not uncommon. Since 2003, more than 3000 Australians have lost their lives at work. These fatalities, many of which were preventable, have triggered a response from some governments, including worksite crackdowns and new regulatory provisions.
One of the most notable of these has been the introduction of industrial manslaughter (IM) legislation in some Australian jurisdictions. These laws criminalise acts or omissions that inadvertently cause death, either in the workplace or whilst the victim is undertaking some form of work activity.
An IM charge can be more than just a rap on the knuckles. If found guilty, a person conducting a business or undertaking (PCBU) may be liable for fines of up to $10 million; and a senior officer could face up to 20 years in prison.
It is considerably more punitive than a “worst-case” financial penalty for breaching traditional workplace health and safety (WHS) laws. These are typically capped at around $3 million for a category 1 offence and have a maximum gaol term of five years.
Plus, there are far more examples of culpable behaviour included in the legislation than those captured by traditional manslaughter laws.
Where do the laws exist?
Given how punitive and comprehensive the laws are, not everyone supports them.
IM legislation currently only exists in the Australian Capital Territory (ACT) and Queensland, but there have been calls to extend the laws to other jurisdictions.
The push is in line with recommendations by Safe Work Australia for a nationwide rollout of the legislation following a recent high-profile review, led by Marie Boland.
Although the topic of IM remains controversial, pressure for governments to address the high rates of workplace fatality in Australia may ultimately lead to broader criminalisation.
Indeed, some political parties have already declared their intention to introduce similar charges in other states; and trade unions are aggressively campaigning for their enactment.
Who may be liable?
IM offences can apply to two broad categories of people: PCBUs and senior officers.
A PCBU is defined as anyone conducting a form of business activity, including a sole trader, a partnership, company, government department or unincorporated association.
A senior officer is an executive member of staff, who is responsible for or concerned with the management and decision-making of a corporation. Examples include CEOs, Directors, Secretaries, CFOs, COOs, General Counsel, General Managers or officeholders (of an unincorporated organisation).
Volunteers are immune from IM prosecutions, as they are protected under the WHS Act, ES Act and SRWA Act.
What needs to be proved?
To establish an IM offence, the prosecution is required to prove a worker has died whilst carrying out work for the business or undertaking – or has received an injury which later resulted in death – and that person is in some way responsible, through either direct action or negligence.
An action or inaction may be considered negligent if it falls short of the “standard of care” required to ensure organisational health and safety and prevent danger to life.
These standards include those that form an organisation’s unwritten rules and policies relating to that trade, industry or profession, including failing to adequately create a culture of compliance.
An example may include an executive failing to budget for materials that meet Australia’s safety standards, in circumstances where it is reasonably foreseeable that such conduct could lead to injury or death.
Another example may be where a manager fails to adequately supervise a worksite and take steps to ensure safety standards are being met.
It is not currently possible for a person to be charged with both manslaughter and industrial manslaughter at the same time.
IM is classed as an indictable offence and may be prosecuted by police or the Director of Public Prosecutions, under the WHS Act, ES Act and SRWA Act.
There are a number of defences that may be used to exempt someone from prosecution of industrial manslaughter, including duress and necessity.
As yet, no prosecution case for industrial manslaughter has been successful, but it is hoped the severity of the penalties – and potential for reputational damage – will act as a deterrent to would-be offenders.