Domino effect

From the east coast to the west, Australia’s states and territories are gradually bringing in new industrial manslaughter laws to respond to workplace deaths, all of which introduce significant penalties. 

It’s a surprising development given policy makers have steered clear of such a move for decades and we already have work, health and safety (WHS) penalty regimes in place. Each state for example has its own safety laws, but there are also the national model WHS laws that provide a framework which each jurisdiction can choose to adopt. 

The ‘industrial manslaughter’ offence first came into being in 2004 in the ACT to deal with a death that occurs in, or in connection with, a workplace. It was argued that its introduction was needed because wokplace deaths were not being captured either by the corporate manslaughter provisions of the general criminal law or by workplace health and safety laws. 

While the impact of a death at a workplace is catastrophic and far-reaching, fatalities at work are often multi-faceted. They can be the result of a range of issues, or a specific set of circumstances, and are generally isolated events. The variables can make these very complex cases.

Since the introduction of the industrial manslaughter offence in the ACT however there has not been a successful prosecution under the law. Despite this, Queensland followed suit and introduced a similar offence in 2017, and then throughout 2019 both Victoria and the Northern Territory did the same. In Western Australia, a Bill is currently before Parliament also seeking to introduce an offence of industrial manslaughter.

This type of response would lead you to think that workplace fatalities have been increasing and stricter penalties are necessary to prosecute blatant negligence, but the opposite is in fact the case. 

Australia has seen a downward trend in workplace fatalities since 2007 when the figure was almost double the rate of 20171. Figures from 2018 show that 144 workers were killed in the workplace, 46 less than in 20172. With regards to the construction industry specifically, there were 24 workplace fatalities in 2018 – down from 30 in the previous year3. 

The new and proposed penalties for an industrial manslaughter conviction would also suggest that the current penalties do not impose sanctions for workplace deaths. This is not the case. 

The current national model WHS laws include penalties for a death at a workplace. A person can be sent to prison for up to five years and companies can incur fines of up to $3 million in cases where a person recklessly engages in conduct, without reasonable excuse, that exposes an individual, who is owed a work health and safety duty, to a risk of death or serious injury or illness. 

Individuals have been sent to jail for workplace deaths. In February 2015, a director of a scaffolding company received a 12-month suspended jail sentence (and a recorded conviction) in Queensland after two of the company’s workers fell from a high-rise complex after the rigging detached from the swing stage scaffold in which they were located. 

The director had disregarded engineering instructions relating to how the swing stage rigging was to be erected and also failed to follow relevant Australian Standards. This resulted in the swing stage being erected in a grossly ‘negligent’ manner4. 

That same year in South Australia a director of a transport company was imprisoned for 12 years and six months, with a non-parole period of 10 years, for the manslaughter of his employee. The employee was driving a company-owned truck when the brakes failed and he had to veer onto the gravel shoulder to avoid colliding with a car. The truck hit a pole and the driver was killed.

Australia has seen a downward trend in workplace fatalities since 2007

The truck’s brakes were found to be in total disrepair and had very little braking capacity for several weeks. In that case the director was prosecuted for manslaughter under the South Australian Criminal Law Consolidation Act 1935.

Despite these cases, the penalties for industrial manslaughter are significantly higher. For example, in Victoria the offence includes fines of up to 100,000 penalty units (currently equating to $16,522,000) for companies, and jail terms of up to 20 years for company officers, who negligently cause a work-related death.

In the Northern Territory a company could face fines of up to 65,000 penalty units, (currently equating to $10,205,000) and imprisonment for life if the person had a health and safety duty, and intentionally engaged in conduct that breached duty which caused a death. The person must have been reckless or negligent about the conduct that breached the health and safety duty that caused the death. 

In Western Australia, as part of moves to adopt the national model WHS laws, a two tiered offence is proposed that includes a maximum penalty of 20 years imprisonment and a $10 million fine for companies.

While the approach in each jurisdiction differs, broadly, the offence can be triggered if:

• there is a death at a workplace; and 
• the business/individual owed a work, health and safety duty to that person; and
• the actions of that business or individual involved grossly failed in the standard of care that a reasonable person would exercise in the circumstances, and such a high risk of death would follow that the act or omission merits criminal punishment.

In various ways, the offences also look to sheet home responsibility to individual directors and officers of companies, making both the business and individuals potentially culpable for a workplace death.

While we will have to wait to see what the impact of these new offences will have on safety onsite, it is worth noting that a 10-year review of the corporate manslaughter offence under the relevant UK WHS Act found that there had been 25 convictions and a handful of acquittals and dismissals.

Although the number fell below the predicted 10-13 corporate manslaughter prosecutions per year5, with a statistically low corporate manslaughter conviction rate, the consequences on individuals and companies speak for themselves6.

HIA will provide members with information on the laws as further details become available.  

1. Work-related Traumatic Injury Fatalities, Australia, Safe Work Australia, 2017, p.8. 2. Work-related Traumatic Injury Fatalities, Australia, Safe Work Australia, 2018, p.8. 3. Ibid, p.10. See also: Work-related Traumatic Injury Fatalities, Australia, Safe Work Australia, 2017, p.10.  4. Department of Workplace Health and Safety v Allscaff Systems and Ralph Michael Smith 2015.  5. Roper, V, The Corporate Manslaughter and Corporate Homicide Act 2007 – A 10 year review, The Journal of Criminal Law, 2018, vol.82(1), pp. 53, 64.  6. Ibid, p 74.