Industrial Manslaughter

This is an interesting article I came across Katrina Kelly in the Australian on the 12th of May 2021 that relates to many client’s questions relating to do I really have to have an Emergency management Plan and train staff as Wardens. This article clearly demonstrates the need for both in your workplace.

Victoria recently had its first case of Industrial Manslaughter go to trial this was the horrific accident that occurred on the Eastern Freeway and involved the alleged  lack of oversight in the training of an employee.

This day has been coming for some time. Still, a decision this week has sent dread around the boardrooms of Australia. In a first for Western Australia, a director of a small shed-building business has just been sentenced to serve actual jail time (not a suspended sentence) after the tragic death of a worker.

On the day of the incident, in March last year, two workers were installing roofing when a roof sheet lifted, under strong winds, causing both to fall approximately nine metres. No safety harnesses were in use, and while one worker was seriously injured, another died.

The company director demonstrated an early acceptance of responsibility and pleaded guilty to several charges. He was handed a prison term of eight months (plus an additional 18 months suspended), a personal fine of $2250 and a business fine of $605,000.

Last year, after the devastating deaths of two workers in separate states, two other employers were handed prison terms, but they were both suspended sentences. In Queensland, after a worker was pinned to a truck by a reversing forklift and died, a company was fined $3 million and two company directors were sentenced to 10 months imprisonment (suspended). In the ACT, after a worker was crushed by a crane, the employing defendant was sentenced to 12 months imprisonment, again, suspended.

Broadly speaking, industrial manslaughter is categorised as an offence where an employer owes a duty to a worker, breaches that duty and is reckless or negligent, and by that breach, causes a death. When this occurs, and is proven by prosecution, a prison term may apply.

Victoria attracted criticism for its industrial manslaughter laws, which took effect in July last year. However, in 2018, the Australian Senate held an inquiry into industrial deaths in Australia and found that model laws with criminal offences for breaches of health and safety duties and jail time as a penalty had been developed by our national regulator, Safe Work Australia in 2011.

The laws had already been “implemented by the Commonwealth and all states and territories, apart from Victoria and Western Australia”.

The model laws are aimed at the situation where workers are simply put at risk, whereas special industrial manslaughter laws are aimed at situations of actual death occurring.

In addition to adopting the model laws, the ACT had introduced industrial manslaughter laws way back in 2004, Queensland in 2017, and the Northern Territory in February last year. NSW has an industrial manslaughter bill before parliament now, but also beefed up its existing laws before Victoria, in June last year, and these include prison terms.

Western Australia is due to implement industrial manslaughter laws next year, but the recent decision was made under existing legislation, which was amended in 2018.

The decision clarifies a common misconception; those employers can only be jailed for the deaths of their workers where a special industrial manslaughter law exists. It also indicates that when it comes to focusing employers’ minds on worker safety, authorities are viewing prison terms as more effective than just fines.

As of May 13, this year, according to Safe Work Australia, 34 Australians have been killed at work. Last year, 182 Australian workers were killed at work, and 183 lost their lives in 2019. Between 2003 to 2018, 3751 died.

Roughly a third of the casualties have been due to vehicle collisions, and the most dangerous industries are agriculture, forestry, and fishing, which have an 11.2 fatality rate per 100,000 workers. Transport, postal and warehousing is next dangerous with a rate of 5.9 and mining comes after that, with a rate of 3.7.

These figures include fatalities from work activity, accident, or exposure at work, but not deaths at work caused by natural causes (unless caused by work), diseases or suicide.

The figures are sobering, and while we ventilate the issue in a policy discussion, it is important to remember the devastation of those who have lost their loved ones. People who lose a family member to a work accident are subject to shock, grief and suffering, social dislocation, and economic hardship.

In addition, there is the trauma experienced by others in the workplace.

For those responsible, even if negligence is present, considerable turmoil ensues. In one case, an employer gave evidence of how he could not sleep at night for seeing the accident over and over in his mind, and had lost everything, becoming depressed, withdrawn and riven with guilt.
Although it varies by degree, a death at work is a shattering tragedy. An Australian is lost, and everyone else involved is hurt. No one gets off lightly. Further, as per the senate report, in every Australian state and territory, employers can end up in jail, when found criminally negligent.