Industrial manslaughter is a criminal offense that occurs when a person or a company causes the death of an employee or a member of the public due to negligent conduct. In Australia, the issue of industrial manslaughter has been a topic of concern for many years, with a number of high-profile cases highlighting the need for stronger laws to hold employers accountable for workplace deaths.
A big wake-up call for employers to get their health and safety systems in order
The first of those cases was a Queensland business that was convicted of industrial manslaughter, with its directors handed a suspended jail sentence. The accident caused the death of a 58-year old casual contractor crushed by a reversing forklift.
The company submitted that it could not pay a $3 million fine (maximum $10 million), but the Queensland District Court said: “However, that does not preclude the imposition of an appropriate fine in the circumstances.” The judge commented that:
“A lesser penalty would not adequately punish Brisbane Auto Recycling Pty Ltd or serve to adequately deter others.
The company pleaded guilty to a category 1 reckless conduct charge. The business had failed to put in place a safety system after 3 years of operation, failed to effectively separate pedestrian workers and mobile plant, and failed to supervise operators of moving plant and workers. Also, the two accused initially tried to deflect blame, saying the victim was the driver of the forklift and had fallen out of the truck.
A maximum jail sentence of 5 years could have been awarded, but the Court determined a 10–month suspended sentence was appropriate. The sentence was suspended due to mitigating factors in relation to the accused clean records and personal circumstances, namely, they were the sole source of financial support for their families and as refugees, they faced potential deportation if jailed and no longer met the good character test. This is obviously an extreme case, but it is a wake-up call for all employers to get their safety systems in order.
What jurisdictions have industrial manslaughter laws?
Off the back of these significant cases, a number of states have passed laws specifically relating to industrial, or workplace, manslaughter. These laws increased the severity of the consequences for being found guilty and outlined that both individuals and companies who breach their health and safety duties or act negligently or recklessly could be prosecuted for industrial manslaughter. Those states with specific laws, and their respective punishments are:
- Victoria – Up to 25 years imprisonment for an individual and an $18.17 million fine for companies.
- Northern Territory – Maximum penalty of life imprisonment for an individual and a $10.2 million fine for companies.
- ACT – Up to 20 years imprisonment for an individual and a $16.5 million fine for companies.
- Queensland – Up to 20 years imprisonment for an individual and a $10 million fine for companies.
It is becoming increasingly likely that the remaining states will follow in the path of these
Lessons for employers
1. Employers must have a safe system of work in place and have implemented the system. Many employers have policies in place or a Work Health and Safety Manual, but have not implemented the policies and procedures in a practical way.
2. In the event of a serious accident, always co–operate fully and be honest in your responses.
3. Seek advice and consider options such as Enforceable Undertakings (up to Category 2 level) where available, to avoid legal proceedings.
4. Individuals are personally liable, and potentially can face industrial manslaughter charges in QLD, VIC, ACT and NT
5. Jail time could result unless there are significant mitigating factors.
ER Strategies Work Health and Safety Service
ER Strategies provides assistance to businesses of all sizes and takes the stress out of running a business. Business owners, especially those with potentially dangerous workplaces, can face quite a lot of pressure in ensuring their workplace health and safety policies and procedures are sufficient. If you think you might need assistance in establishing compliant policies, or you just want to have them reviewed, get in touch with ER Strategies on 1300 55 66 37, or click here to contact us.
