INDUSTRIAL MANSLAUGHTER | Business owners take heed
Whilst the concept of workplace or industrial manslaughter has been in place in ACT, Northern Territory and QLD for some time, Victoria is about to have this law come into effect (on or about 1st July 2020).
As an aside, South Australia, Western Australia and NSW are still in the process of debating such legislation, and there is no proposal on the table in Tasmania. QLD enacted industrial manslaughter in 2017 in the wake of the Dreamworld tragedy.
It’s a timely reminder for all business owners and leaders to make sure they know about what this law is about in their State, and how it affects you and your business.
The concept of industrial / workplace manslaughter sits within the relevant Workplace Health & Safety Act. Whilst manslaughter can be prosecuted under criminal law prior to this, it is harder to prove responsibility at the “top of the tree”, especially in large & complex organisations. With industrial manslaughter sitting within safety legislation, prosecutions can go right throughout an organisation, and gives an impetus for setting clear safety standards with corporate and individual liabilities.
What is industrial manslaughter about?
It’s about a business/company (noting that penalties for individuals within the company apply as well); and
It’s due to the death of a person that the business had a duty of care to; and
It’s proposed there was negligence where there was a high risk of death, serious injury or serious illness; and
That negligence was committed voluntarily and consciously / deliberately.
Who can be charged?
Directors/Secretaries
Partners
Trustee
People who participate in decisions that affect substantial parts of the business, including financial standing (i.e., CEOs, CFOs, General Managers, Counsel)
In QLD, these are known predominately as Persons Controlling a Business Unit (PCBU).
Negligent conduct is:
Deliberate and voluntary “negligence” in ensuring a duty of care, following the reasonable persons test (it varies a little from State to State). This negligent conduct then caused the death of the person/s (causation).
Penalties – fines and prison
The penalties vary from State to State. In QLD, industrial manslaughter carries maximum penalties of $10M for businesses and 20 years imprisonment.
The new legislation in Victoria goes further with penalties – up to $16.5M for corporations and up to 20 yrs imprisonment.
Ignorance is not a defence - instilling a safe workplace culture
The very crux of industrial manslaughter legislation is to ensure that from “the top down”, safety is paramount and there is a line of sight with responsibility (and hence penalties) from the Board / CEO down to the manager.
This is why many senior safety positions in companies report directly to the CEO and/or Board. That is a crucial step in my opinion to ensure that these senior executives are aware of what is going on, where the risks lie and the steps taken to protect the safety of workers and others.
Ignorance is absolutely no defence in industrial manslaughter. Those in a position of power around making decisions that affect safety, should make very certain they have an understanding of an organisation’s safety framework, safety specialists, safety training, how issues are resolved, reporting and safety improvements.
This is serious business - you should seek out experts to assist your organisation with a clear line of sight on all safety matters.
Reach out to us now for help – we have specific experience in turning around organisations with poor safety records, including one who became a finalist in WorkCover Awards.