Are our current laws enough to rein in 'rogue employers' or do we need a change?
The Greens industrial relations spokesperson Tammy Franks MLC has introduced a bill into the South Australian(SA) Parliament seeking to create an offence of 'industrial manslaughter' in SA. The bill would be an amendment to the Work Health and Safety Act 2012, the SA version of the harmonised work health and safety (WHS) legislation.
Franks made the announcement on World Day for Safety and Health at Work, stating that the "bill seeks to capture a very small minority of employers who cruelly put their workers through unnecessary risk and would only apply in the event that an employee tragically dies and circumstances warrant this remedy".
Franks acknowledged this approach is "unashamedly a 'stick' rather than a carrot—but a punitive approach is appropriate when a person has been killed due to negligence".
In 2014 there were 185 workplace deaths recorded in Australia. Thirteen of those were in SA. There is no doubt that one workplace death is one too many. However, is the introduction of industrial manslaughter necessary? It may be that the current offences contained under criminal law and the harmonised WHS Acts across the country are sufficient.
The bill seeks to introduce a new offence of 'industrial manslaughter'. Under the new provision an employer is guilty of an offence if the following occurs:
- the employer knew, or ought reasonably to have known, or was recklessly indifferent as to whether, an act or omission constituting a breach would create a substantial risk of serious harm to a person, and
- the breach causes the death of a person.
The maximum fine is $1 million for employers or 20 years' imprisonment where the employer is a natural person.
Further, the bill provides that an 'officer' of an employer that is a body corporate is guilty of an offence if:
- the officer engaged in conduct that, had the officer been acting within the scope of his/her actual or apparent authority, would be imputed to the employer pursuant to s 244 of the WHS Act
- the conduct would, if so imputed, constitute a breach by the employer of the duty
- the officer knew, or ought reasonably to have known, or was recklessly indifferent as to whether, the act or omission constituting the breach would create a substantial risk of serious harm to a person, and
- the breach causes death to the person.
The maximum penalty imposed is 20 years' imprisonment.
When determining liability the bill makes clear it is sufficient if the alleged breach of the duty "substantially contributed" to the death. The bill also provides that the management or organisation of activities is relevant in determining whether the charge has been made out.
It is difficult to argue against holding persons responsible for a workplace death, but one must question why the ordinary law of manslaughter and existing WHS Act provisions are not sufficient.
Similar to the criteria proposed in this bill, criminal manslaughter requires the act of the defendant to contribute significantly to the death of the victim. The type of behaviour sought to be captured is death from an unlawful or dangerous act, with the defendant exposing the victim to an appreciable risk of serious injury.
The second type of offence under criminal manslaughter is that of criminal negligence, where the behaviour of the defendant is so reckless as to show disregard for the life and safety of others. The negligent act must be a substantial factor in the cause of death. The Criminal Law Consolidation Act 1935 in SA provides that the maximum penalty for manslaughter is life imprisonment and/or a fine.
In addition to charges being brought under criminal law, the company and officers of the company can be prosecuted under the WHS penalty regime.
The regime provides penalties for a category 1 offence of up to $3 million for the corporation. Individuals operating as a PCBU (person conducting a business or undertaking) or officers can be liable for a penalty of up to $600,000 and/or five years' jail, and individual workers are at risk of a penalty of up to $300,000 and/or five years' jail.
A category 1 offence occurs when the defendant breaches the WHS Act and a risk of death or serious harm arises and the defendant was recklessly indifferent towards its health and safety obligations. Of particular note, unlike the proposed bill, such an offence can be brought on risk alone—that is, death is not required.
The penalties under the WHS legislation also allow for alternative penalty options. It is recognised that high fines may not always motivate defendants to comply with their safety obligations, so the WHS Act allows for a range of alternative remedies, including:
- adverse publicity orders
- restoration orders
- WHS project orders
- court-ordered WHS undertakings
- injunctions, and
- training orders.
If the purpose of the proposed bill is to motivate officers by way of a big stick threatening jail time, the current due diligence requirements in the WHS Act already provide a suitable vehicle to motivate. Under the due diligence obligations, officers need to show they have taken reasonable steps to:
- acquire and update their knowledge of WHS matters
- understand the operations being carried out by the PCBU in which they are employed
- [understand] the hazards and risks associated with the operations
- ensure the PCBU has and uses appropriate resources and processes to eliminate or minimise health and safety risks arising from work being done
- ensure the PCBU has appropriate processes in place to receive and respond promptly to the information regarding incidents, hazards and risks, and
- ensure the PCBU has and uses processes for complying with duties or obligations under the WHS Act.
The aim of the due diligence obligations is to emphasise the corporate governance responsibilities of officers. This positive legal obligation requires that officers take active steps to meet each of the six requirements and does not require there to be an incident for officers to meet their legal obligations.
Regardless of whether the proposed industrial manslaughter bill survives its political journey, it appears that our current laws provide ample opportunity to prosecute 'rogue employers'.
This article was originally published by National Safety magazine.