Industrial manslaughter laws are present in the ACT, Queensland, Victoria, Northern Territory and Western Australia, placing workplace fatalities into the criminal arena and subject to prosecution. Currently, industrial manslaughter laws can inflict bigger penalties and gaol time on an employer or owner of a firm then health and safety legislation.
Across the states, the maximum penalties for an offence of industrial manslaughter are on average 20 years' imprisonment and $5 million fines for an individual responsible for negligently causing death and between $10-16 million fines for a body corporate.
Up to 19th December 2019, Safe Work Australia recorded 157 workplace fatalities for the year. Thirteen more workers died at work than the previous year.
The introduction of industrial manslaughter laws is increasing the risks associated with conducting business with many examining their processes, evidence of safe practice and insurance needs. How do you protect your business and your employees in light of the industrial manslaughter legislation?
Industrial Manslaughter Laws Differ by State
In 2003, the Australian Capital Territory introduced industrial manslaughter as an offence under its general criminal legislation. There is currently a prosecution underway concerning a fatality at the University of Canberra Hospital construction site.
Queensland introduced industrial manslaughter laws in 2017 and is the first state to successfully prosecute with the fatality of a worker killed by a reversing forklift in April 2019. Two of the company directors have been charged for engaging in reckless conduct resulting in the death of a worker.
Victoria recently passed their industrial manslaughter laws and extended them to apply to members of the public. There is no time limit for safety prosecutions under these laws, which means charges of employers could occur many years after a fatality. There is even the suggestion that negligence could extend to mental ill-health resulting in am employee taking their own life as a result of an employer's negligent conduct. The implications are significant.
Towards the end of 2019, the Northern Territory introduced their industrial manslaughter laws which include life imprisonment for individuals and $10.2 million fines for companies found negligent.
Western Australia passed their industrial manslaughter laws in the lower house before Christmas 2019 with the likelihood of becoming law in 2020. The WA law is similar to Victoria's with one new duty to include providers of WHS services. Those providing WHS services must ensure, so far as is reasonably practicable, that their services will not put persons at a workplace at risk. Therefore, WHS consultants must carefully examine their recommendations on how to eliminate and control hazards. Once again, the implications are significant.
NSW has rejected introducing specific industrial manslaughter laws and instead rely on the Crimes Act 1900 (NSW) that imposes 25 years imprisonment. South Australia and Tasmania are yet to determine their stance on the legislation. However, there is a move to amend the model WHS Act to provide for a new offence of industrial manslaughter (see the National Review of the Model WHS Laws).
As a Business What Do You Need To Do?
As a business, you must have your house in order to safeguard against the industrial manslaughter legal requirements. Below are eight steps you can take:
- Review all the potential hazards and risks (physical and psychological) in your workplace, and manage within a risk management framework.
- Conduct a formal review of your safety systems and controls to ensure they are effective and a correct reflection of your processes.
- Review all your existing policies and ensure they are complete.
- Examine your health and safety leadership and culture for possible negligent practices.
- Ensure all company directors, senior officers and managers understand the implications of the legislation.
- Review your incident action plans and responses.
- Consider your business insurance arrangements. But remember in NSW and WA insurance policies cannot pay WHS fines.
- Train all employees in the safe practice of high-risk activities. Regularly refresh the training to ensure ongoing competence and keep detailed reports and records.
Train to Prevent Injuries
The ultimate goal is to eliminate injuries to prevent the prosecution of companies according to industrial manslaughter laws. Training around high-risk activities plays a vital part in injury prevention. The danger is the assumption that once training is complete, employees are set for life. What you need to be aware of is that after training your employees, by the end of the first month up to half of what you teach is lost. High-risk activities need regular refresher training. The training delivery method also impacts retention. Training that is passive and does not require decision-making is likely to go in one ear and out the other.
Now there are two ways to look at training. One is from a compliance stance, and the other is to change behaviour. More and more in today's regulatory environment, compliance training doesn't cut it. Because prosecutors want to know that your employees clearly understand their safety obligations and can apply their knowledge; especially in high-risk tasks.
As a business, you need evidence of your employee's knowledge of the risks in their work environment and the correct control measures they need to use to keep themselves and others safe. You need to include both physical and psychological risk. Consequentially, in light of the industrial manslaughter laws, you must keep accurate training records and evidence that your employees remain competent and compliant.
How Can Tap into Safety Help?
Tap into Safety takes training seriously. We provide engaging methods to train how to manage workplace hazards using critical control measures. We understand that relevant and engaging safety training is crucial for the transfer of knowledge into practice. The training uses gamification to improve the trainee's experience when using our software; however, we never trivialise the training content.
Each piece of training has a purpose. We understand that workers have other pressing tasks in their day, and we train to deliver critical messages quickly and succinctly.
To protect your business, the training platform provides comprehensive reporting so that you have evidence of your employee's knowledge about high-risk tasks and their understanding of the correct control measures. The reports detail the gaps in their knowledge so that you can immediately rectify any misunderstandings. The reports provide a record that you have proactively and regularly trained your employees about high-risk tasks, and this helps to meet your obligations under the industrial manslaughter laws requirements.
In today's larger organisations, there is a move to place the priorities of developing training with L&D teams. However, time is of the essence with the introduction of industrial manslaughter laws.
The Tap into Safety training platform has a significant number of out of the box training modules that cover high-risk tasks such as working at height, working around moving plant, working with electricity and handling hazardous substances, at a very affordable price. There is no need to spend time and resources creating your content because we can easily integrate into your portal or LMS via a simple URL.
Tap into Safety's Mental Health Training is focussed on your employees and uses MicroLearning methods. We aim to increase their mental health literacy by providing animated stories on workplace stressors that can impact on their mental health over a broad range of topics. We teach coping strategies to reduce stress, anxiety and depressive thoughts, all the while encouraging employees to reach out and seek help if they need more support.
This article examines the requirements of the industrial manslaughter laws and the implications for business. The introduction of industrial manslaughter laws in most states and territories in Australia places the onus on business to immediately have their houses in order. Not only do they have to have a safe work environment, but more and more, there is a need to have their leaders and employees working within a safe culture.
Business must have their policies in place, their safety systems genuinely reflective of their operations and they must have evidence of ongoing employee competence and compliance. Training plays a critical role and proof of training around high-risk activities, and correct control measures are imperative to protect both employees and the business.
critical role and proof of training around high-risk activities, and correct control measures are imperative to protect both employees and the business.