Page 55 - Print21 Magazine Jan-Feb 21

Associations
in reckless or negligent conduct that breaches the duty thereby causing the death of an individual. The offence carries a maximum penalty of life imprisonment for an individual, and a penalty of more than $10m for a body corporate.
New South Wales
This year New South Wales has introduced “gross negligence” offences under the NSW Workplace Health and Safety Act. Additional amendments prohibit a person from entering into a contract of insurance or other arrangement “without reasonable excuse” under which the person is indemnified for payment of a monetary penalty under the
act. However, the state has stopped short of legislating specific industrial manslaughter offences.
South Australia
and Tasmania
The remaining states have recently had some parliamentary activity on the issue of industrial manslaughter but have not as yet incorporated such a specific offence into their workplace health and safety acts.
Western Australia
After considerable debate, the Western Australia government recently passed provisions that legislate the criminal offence of industrial manslaughter. Effectively, the new laws create two separate
offences of industrial manslaughter. The more serious of the new
offences is “Industrial Manslaughter – crime” where if a person breaches or fails to comply with a health
and safety duty they have and this results in the death of an individual, and they know that conduct is
likely to have caused the death
of a person, they may be found guilty of industrial manslaughter. The maximum penalty for this subsection of the act:
• for an individual, imprisonment
for 20 years and a fine of $5m, and
• for a body corporate, a fine of $10m.
“A director who is convicted of workplace manslaughter faces a maximum penalty of up to 20 years imprisonment and fines up to $16.5m.”
The second, and apparently lesser offence, is entitled “Industrial Manslaughter – simple offence” arises when a person owes a health and safety duty to an individual
but fails to comply with the duty and the failure causes the death of an individual. For this particular offence to be proven, a clear line
of causation must be established between the failure to comply with a health and safety duty, and the death of an individual:
• the person must have a health and safety duty; and
• the person fails to comply with that duty; and
• the failure causes the death of an individual.
The maximum penalty:
• for an individual, imprisonment for 10 years and a fine of $2.5m
• for a body corporate, a fine of $5m In numerous respects, it is this
lesser offence that should be of concern for Western Australian businesses. This offence does not require the establishment of a person knowing the conduct was likely to cause the death of an individual.
Business
considerations
Although industrial manslaughter laws are serious, an individual who was so negligent to have caused
a workplace fatality is and will continue to be rare. Nonetheless, executives and senior company officers need to regularly inform themselves on WHS, and ensure an appropriate approach is applied. This should include:
• Reviewing internal safety and risk frameworks to identify and manage risks or hazards.
• Reviewing workplace health and safety policies and procedures to ensure compliance with the legislation.
• Ensuring the ongoing cultivation of a safety compliance culture.
• Reviewing incident reporting arrangements to ensure that any safety defects, risks or hazards are addressed effectively and quickly.
• Ensuring appropriate levels
of employee competence and safety related induction for new employees is comprehensive.
• Ensuring records are kept. Given the potential personal
liability of individual executives and company officers, workplace health and safety issues should
be a standing item at any senior management or board meeting. 21
Limited judicial guidance – one prosecution
There is little precedence and currently only one completed industrial manslaughter prosecution of a corporate entity and two of
its directors. In a decision from this year the Qld District Court convicted the defendant company, Brisbane Auto Recycling, of industrial manslaughter and imposed a fine of $3m. The two directors of the company were also found liable and convicted of reckless conduct. Both received a sentence of 10 months’ imprisonment suspended for 20 months.
This prosecution was the result of a workplace fatality caused when a forklift being driven by an unlicensed employee reversed over another employee. An investigation of the incident evidenced the business:
● had no written safety policies or procedures;
● had no traffic management plan at the worksite, across which a number of forklifts operated in close proximity to workers and the public;
● simply told workers to “be safe and look after themselves”;
● did not check the licence status of forklift operators; and
● did not have a WorkCover policy because the directors were not aware of the requirement.
The Court held the moral culpability of
the directors to be high as they knew of the potential consequences of the risks, but consciously disregarded them.
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