Industrial Manslaughter legislative amendments and their relevance for you

Recently, the Queensland Parliament (Labor with the help of the Katter Party) passed the proposed industrial manslaughter amendments into law. The amendments broaden responsibility for workplace related deaths and substantially increases the potential penalty.

The new offence of industrial manslaughter is made when a person conducting a business or undertaking (PCBU) or a senior officer of the PCBU conduct themselves (failing to act can still be “conduct”) in a way that causes or substantially contributes to the death of a worker and the PCBU or senior officer is negligent in causing the death.

The maximum penalty for industrial manslaughter is $10 million for a company. The action or failure to act by an individual (either a PCBU or a senior officer) carries a maximum penalty of 20 years imprisonment.

The legislation does not give the option of a fine for an individual PCBU or senior officer – only imprisonment.

What are the key concerns about this new provision?

All businesses should be concerned about this new health and safety offence. There are very serious consequences for anyone prosecuted and convicted of industrial manslaughter.

One of the concerns is what constitutes negligence for this offence. Generally, negligence in relation to a criminal offence is of a different standard to the civil “duty of care” standard. For criminal matters, the Courts require negligence that:

falls significantly short of the standard of care a reasonable person would have exercised; and
involves such a high degree of recklessness, that the conduct merits criminal punishment.

Of course, until there are decided Court cases on the new provision, no one can state for sure what standard will be applied for WHS matters. It is, however, most likely to be recklessness that so significantly falls short of a reasonable standard of care, that the reckless conduct merits criminal punishment. An example might be when a business directs workers to continue to work in the face of a clearly identified significant hazard and the business does not take any steps to eliminate or minimise the risk; but rather just tells workers to “be careful”.

Depending on the hazard, the risk and the consequences; such a failure to manage the hazard might be so reckless as to merit criminal punishment, if a worker dies as a consequence of the PCBU doing nothing about the hazard.

Another concern is that industrial manslaughter carries a far higher maximum penalty than that which exists for category 1 “reckless” conduct that causes death. The maximum “reckless” conduct penalty is $3 million for a body corporate and $600,000 and/or 5 years imprisonment for officers. Further, under the industrial manslaughter provision, an individual can only be sentenced to a term of imprisonment. There isn’t the option for a fine. This could result in an increase in custodial sentences for work health and safety prosecutions.

A concern for managers is that more managers come within the definition of “senior officer” than, for example, those who are “officers” required to exercise due diligence under the legislation. The definition of a senior officer is broader than the existing concept of an “officer”. A senior officer includes any person:

who is concerned with, or takes part in, the corporation’s management;
irrespective of whether the person is a director or the person is called an executive officer;
and makes, or takes part in making, decisions affecting all, or a substantial part of:
the business; or
the person’s own functions in the business.

More managers may be at risk of industrial manslaughter prosecution and so all managers need to be sure their actions or failure to act cannot cause the death of another person.

A final concern is a person’s or PCBU’s right to remain silent in the face of possible criminal prosecution.

Under the Queensland Criminal Code, a person accused of a crime has the right to remain silent. They do not have to answer questions about an incident or apparent crime and it is up to the prosecution to prove the offence.

The WHS Act does not include this right to remain silent despite making industrial manslaughter a crime. This could be significant. When investigating an incident, a WHSQ inspector can ask a person a question and the person must answer, even if the answer may tend to incriminate the person. The concession (in limited circumstances) is that the given answer is not admissible as evidence in a civil or criminal proceeding. Still, the answer has to be given and inspectors can then find another way to obtain and adduce the evidence in a hearing.

For a workplace death then, it will be important to take care when answering an inspector’s questions and being sure answers are only given subject to the inspector’s powers to compel the answer so that the protections (as far as they go) can be relied upon.

What do you have to do?

First of all, ensure you and your business understands the scope and requirements of the work health and safety legislation and eliminates or minimises the risks to health and safety across every aspect of the business’ tasks and operations.

Secondly, ensure your managers and supervisors understand how to manage risks and how to inculcate a work culture and attitude that ensures safety and risk management is an integral part of every aspect of work and not just a bit a paperwork.

Thirdly, take legal advice urgently if an injury occurs at work. Of course, in cases of more serious injury or death, it is imperative that you take legal advice and invoke legal professional privilege over any post incident process – at least until the extent of the potential liability is identified. We can help you through any Workplace Health and Safety Queensland investigation process that will follow.

Every business needs to continually review and reinforce its safety systems and reinforce that doing a job safely is non-negotiable and will always be supported and encouraged.

For advice or further information on the industrial manslaughter amendments, please contact our Employment Law team.

Commercial & Business, Criminal LawFiona Hollingworth27 October 2017