Industrial Manslaughter - the reaction or solution to workplace fatalities?

Occupational health & safety legislation is focused on the prevention of workplace accidents through educating employers and employees in workplace safety, promoting consultation between employers and employees at the workplace and adopting risk management practices to eliminate or control any risks to safety.

Balanced against those ideals, is the threat that a breach of safety obligations can result in monetary penalties of up to $825,000 for a corporation under the NSW Occupational Health and Safety Act 2000. The size of the penalty is said to reflect how seriously society views a breach of those safety obligations.

There has recently been a growing debate about whether those monetary penalties are sufficient when it comes to workplace fatalities. Recent workplace deaths, particularly the death of young and inexperienced workers, have led to a call for industrial manslaughter legislation.

Industrial manslaughter legislation is designed to make organisations, directors and senior officers of organisations criminally liable for workplace fatalities when that fatality is due to criminally reckless or negligent behaviour. Such legislation will expose organisations to significant fines but individuals will face both fines and the risk of imprisonment.

The Australian Capital Territory has passed industrial manslaughter legislation, being the first legislation of its kind in Australia.

Australian Capital Territory Industrial Manslaughter laws

On 27 November 2003 the ACT Parliament passed the Crimes (Industrial Manslaughter) Amendment Bill 2002, creating the offence of industrial manslaughter. That offence carries a maximum penalty of $1.25 million for companies. Individuals face a penalty of up to $250,000 or imprisonment for 25 years or both.

In addition to those penalties, the legislation also allows the Court to order an organisation to undertake community projects to a cost of up to $5 million.

Under the ACT legislation, an employer and senior officer of an organisation commits the criminal offence of industrial manslaughter if:

• a worker dies in the course of employment or is injured in the course of employment and later dies; and

• the conduct of the employer or senior officer causes the death of the worker; and

• the employer or senior officer is reckless about causing serious harm to the worker or negligent about causing the death of the worker.

A "senior officer" includes directors and any person who makes or participates in decisions that affect the whole or a substantial part of the business of the organisation. An employer’s or senior officer’s omission to act can be "conduct" for the purposes of the legislation.

What does the ACT industrial manslaughter offence mean?

The industrial manslaughter offence is a criminal offence that will need to be established to the criminal standard: beyond reasonable doubt. The more difficult issue is what must be actually proven to establish the offence.

There is much uncertainty about how the offence of industrial manslaughter will operate in practice. It is new legislation the precise effect of which is unclear in some respects. Until the Court has had the opportunity to consider the legislation, it raises a number of questions, for example:

• what level of conduct or lack of conduct needs to be established for an employer or senior officer to be so reckless or negligent as to be guilty of the offence of industrial manslaughter?

• to what extent must that conduct cause the death of the worker? This will involve considering whether conduct substantially contributed to the death.

• what level of "negligence" must be satisfied in order for the offence to be proved?

• how will the offence operate in conjunction with existing occupational health & safety legislation?

The NSW occupational health & safety legislation requires an employer to ensure the health & safety of all employees or persons at its place of work. That is a strict obligation requiring employers to guarantee and secure its employees’ safety. However, we consider it is likely the offence of industrial manslaughter will require a high level of negligence to be found. This would probably include acts of reckless or culpable negligence.

There is also uncertainty about how the legislation will operate with different size organisations. With a larger organisation will it be more difficult to prosecute a director? Will it be easier to prosecute management in a small organisation where management is more hands on?

Despite these uncertainties, it will not be the case that employers or officers will be prosecuted whenever there is a fatality. We consider establishing the industrial manslaughter offence will be difficult for a prosecutor and the legislation is only intended to capture those who have a total disregard for their safety obligations and that disregard causes the fatality.

Other States

In NSW, there is a private members bill (introduced to the Legislative Council in April 2003) seeking to create the offence of industrial manslaughter - Crimes Amendment (Corporate Manslaughter) Bill 2003. That bill contemplates fines of up to $5 million for corporations and up to 5 years imprisonment for individuals.

In Victoria industrial manslaughter legislation was introduced into parliament but was blocked by the Upper House.

Is there a better approach?

The main message of opponents to industrial manslaughter legislation is that occupational health and safety is about prevention, increased awareness and communication between employers and employees about workplace safety. Further, industrial manslaughter legislation:

• may not reduce the risk of workplace fatalities;

• is punitive rather than preventative;

• sends the wrong message to investors that Australia is a high risk place to do business; and

• has the potential to raise the stakes in litigation and encourages employers to contest every prosecution.

Conclusion

Workplace fatalities are to be avoided at all costs. However, there is concern that industrial manslaughter legislation is too punitive and may do little to reduce the risk of workplace fatalities. An increased focus on communication, education and prevention is better placed to reduce workplace fatalities. Employers who use all their best endeavours to ensure the safety of persons at their place of work should have little to fear.

Nonetheless, the passing of the ACT Industrial Manslaughter legislation may herald a trend toward stronger industrial safety legislation in other parts of Australia.