This article examines the increasingly stringent approach regulators and courts are taking to the enforcement of safety law nationally, and the factors that have contributed to this change.
Recently we've seen a change in the approach to safety breaches from regulators and courts, including an increase in penalties being sought and issued, including individuals being sent to prison. This is further reflected in legislative changes where increased penalty levels and industrial manslaughter provisions are being introduced and with governments placing pressure on regulators to increase their scrutiny of safety breaches and enforcement of safety laws, including taking steps to hold individual employees, managers and officers accountable for safety incidents.
In the last 18 months, two individuals, both directors, have received jail sentences following convictions for breaching safety legislation. Currently, there are multiple prosecutions underway in various states against individuals, both employees and directors, for manslaughter (under Criminal Law) and Category 1 offences (involving reckless conduct) which carry the potential for imprisonment.
How did we get here? Safety law has always included the potential for imprisonment of individuals, but rarely had these provisions been used.
While there are certainly a wide range of factors which have contributed to the current regulatory environment (including multiple royal commissions being critical of regulators generally), there are a number of key events which can be identified as triggering the current approach.
Significant safety incidents
First, there have been a number of significant, tragic, high profile safety incidents nationwide which have attracted public scrutiny and attention. Notably, these incidents involved members of the public, rather than workers.
In 2013 in Melbourne, a wall surrounding a construction site collapsed, killing three pedestrians. Two entities were fined $250,000 in relation to the deaths. A coronial inquest into the incident found the site owner was responsible for the safety of the wall and resulted in amendments to construction safety legislation.
In 2014, an incident occurred at the Royal Adelaide Show, when an eight year old girl was killed after being flung from a ride. Investigations into the incident identified a range of safety failures and breaches, including relevantly, that a number of other individuals had been injured on the ride in the previous months, that there were inadequate restraints and improper supervision.
The 2016 Dreamworld incident in particular, where a malfunctioning ride resulted in the death of four passengers, had a wide national impact and certainly brought the issue of workplace health and safety clearly into the public and political consciousness. While no prosecutions have yet commenced a coronial inquest has been held, and based on the evidence currently available, it can reasonably be anticipated that the coroner will make multiple adverse findings against Dreamworld and a number of individuals.
State and Federal reviews into safety regulation
Secondly, and partly in response to these incidents, multiple reviews at State and Federal level have been undertaken into safety regulation.
The Queensland review found that a greater emphasis was required on 'hard' enforcement strategies such as issuing notices and prosecutions, and industrial manslaughter provisions should be introduced with penalties of up to $20 million and 10 years imprisonment. Similar provisions are being introduced in the NT following its review.
In South Australia the Independent Commissioner Against Corruption has issued a report that calls for significant regulatory reform and found that the safety regulator was not meeting community standards in its approach.
An ACT review has recommended a greater focus on and use of enforcement mechanisms such as notices and, where appropriate, prosecution. Federally, we have seen the completion of the 2018 review into the 'Harmonised' Workplace Health and Safety Act. The report includes recommendations for:
- an increase in penalties;
- the introduction of industrial manslaughter provisions;
- strengthening 'category 1' offences; and
- the introduction of sentencing guidelines to achieve a nationally consistent position in relation to penalties for safety breaches.
In addition, a Federal Senate enquiry into industrial deaths has made multiple recommendations including to strengthen:
- safety legislation (including increasing penalties, expanding individual liability and industrial manslaughter provisions); and
- safety regulators by recommending additional funding for inspectors, training and investigation, expanded powers and introducing an onus on regulators to justify why prosecutions are not commenced, rather than justifying why they were not.
The consequence of the recommendations is that prosecution and the use of enforcement mechanisms becomes the default position for safety regulation rather than a measure of last resort.
While not the subject of this article, it is worth noting that the majority of these reviews have identified the need for an increased focus on psychological health and wellbeing issues, which undoubtedly remain a challenge for the majority of workplaces.
As a consequence, at least partly of the above events, there have been observable changes to the safety enforcement approach of legislators, courts and safety regulators.
Both WA and Queensland have seen significant increases in the maximum penalties for safety breaches. In WA, the fines for a corporation found to have caused the death or serious injury of a worker increased from $400,000 to $2 million. In Queensland, maximum health and safety fines under mine safety legislation increased nearly 1500%, to take the maximum penalty to just under $4 million. That legislation now exposes individuals to jail sentences for a wider range of offences, with the maximum imprisonment terms ranging from six months to three years depending on the severity of the offence. As mentioned above, industrial manslaughter has been introduced in two jurisdictions, is being contemplated in several more (including WA) and forms part of the Federal Labour Party's election platform for federal law reform.
While current data is difficult to obtain, our observation is that regulators are increasingly prepared to issue multiple notices as a part of routine workplace inspections.
The increased focus on enforcement is also observable, in the continuing nationwide trend, towards multiple concurrent prosecutions where the employer, individual employees, officers and any contractors on a site, involved in the same incident are prosecuted.
Two current examples of this can be seen in Queensland and the ACT.
In Queensland, prosecutions commenced against four individuals and one corporate employer in relation to the 2016 incident at the Eagle Farm Racecourse. This includes charges of manslaughter commenced under the Queensland Criminal Code.
In the ACT, four employees including a site safety officer, a supervisor, a crane driver and a crane dogman are currently charged with workplace safety offences carrying terms of imprisonment in relation a fatality that occurred on the University of Canberra Hospital site.
Notably, in relation to this incident, the CEO of the site's principal contractor, Multiplex and the managing director of the subcontractor, RAR Cranes have been personally charged as officers, despite neither being operationally involved at the site, or with the incident. The ACT Work Safety commissioner commented that this prosecution reflects the regulators' attitude that safety responsibilities apply from the site workers all the way up to the boardroom.
The Court's approach to penalties in safety matters is reflective of the increased focus on enforcement and individual accountability. The ultimate sanction available to a Court in any matter, is the ability to impose a term of imprisonment on an individual. As mentioned at the start of this article, in two recent cases, individual directors, one in Victoria (a 72 year old woman) and one in Queensland have been sentenced to six months' and 12 months' imprisonment respectively, in addition to the significant fines imposed on the directors' business ($1 million in the Qld case).
While terms of imprisonment in relation to safety incidents are not unprecedented, (in March 2018, a Queensland man was sentenced to seven years' imprisonment under criminal law in relation to electrical work performed as a contractor), the imposition of imprisonment terms under safety law is. With these sentences having now been imposed, it can be reasonably expected that regulators will increasingly seek terms of imprisonment for individuals in serious safety matters, including utilising both criminal and industrial manslaughter provisions where appropriate.
What to do now
Ensuring that you are aware of, and are managing, your safety obligations under safety law is critical. This includes ensuring that as a manager or officer, you are aware of your due diligence obligations and making sure that your business is managing its safety risks. A key part of this is ensuring that you are requesting and receiving safety information from qualified and reliable sources, and that you are taking steps to ensure that this information is correct.
If you would like additional guidance or wish to discuss this article, please contact a member of our Workplace team.