With the increasing emphasis on safety in the workplace, leading to a reduction in injuries and fatalities from workplace accidents, attention has been turning to employers who do not comply with their duties that lead to fatalities.
Currently, the majority of States and Territories do not have separate provisions in their work, health and safety legislation for industrial manslaughter.
In South Australia, the highest offence under the current Work Health and Safety Act 2012 (SA) is for reckless conduct which leads to an exposure to risk of death or serious injury or illness, with maximum individual penalties of $600,000, or five years imprisonment, or both.
The ACT introduced an industrial manslaughter offence into their Crimes Act 1900 (ACT) in 2003, and are currently proposing to shift this into their WH&S legislation. Queensland introduced an industrial manslaughter offence into their WH&S legislation in 2017, and recently launched its first prosecution under this provision, relating to the death of a worker after being struck by a reversing forklift at a wrecking yard. Charges have been brought against this company for industrial manslaughter, and against the two company directors for reckless conduct resulting in the death of a worker.
Victoria currently has legislation before their Legislative Council to create a criminal offence of industrial manslaughter and under the proposed legislation, the offence can include liability for negligent conduct leading to death, including of a member of the public, and can lead to penalties of up to $16.5 million or twenty years imprisonment.
The South Australian Government has previously resisted the notion of introducing an industrial manslaughter offence.
The first reason for this is that there is already a recognised and well settled offence of manslaughter in the Criminal Law Consolidation Act 1935 (SA), and these provisions were successfully used in an industrial context in 2015 to convict the director of an employer for manslaughter following the death of his employee. The employee died when the truck he was driving crashed due to brake failure, with the court finding that the director had failed to maintain the brakes on that vehicle.
The Hon. Tammy Franks MLC recently introduced a private member’s bill into the South Australian Parliament, seeking to introduce an industrial manslaughter provision into the WH&S legislation. The current Government has confirmed they will not support the bill, and without such support, it is unlikely to progress.
While safety is paramount to importance in the workplace, leading employment lawyers believe that an offence of industrial manslaughter will eventually form part of our law, it is important that such legislation be carefully considered and balance all duties and interests.
If you need WH&S, workplace relations or industrial relations advice or assistance contact the WR team on 8291 2000 or via email by clicking here.