The Changing Face Of Industrial Manslaughter - What Are The Implications For Today’s CEO?

• When the State Labour Government came into power, they were committed to bringing in new legislation to address ‘gross negligence’
  
• They have done this in the form of:
  • A proposed Crimes (Industrial Manslaughter) Bill;
    
  • An increase in the number of health and safety inspectors;
    
  • An increase in the penalties for failing to provide a safe and healthy working environment within the existing OH&S Act.
  
  
  • The proposed bill has significant implications for employers who have not addressed health and safety in their workplace.
    
  • The bill has yet to be passed and may be ‘watered down’ if lobby groups can persuade the opposition.
  
  Existing penalties for breaching OHS requirements
  
  

  Breach	Body Corporate	Officer
  OHS Act - Indictable offence	$250,000	$50,000
  OHS Act - Summary offence	$40,000	$10,000
  Manslaughter (not industrial)	$1.2 million	Imprisonment up to 20 years; $240,000
  Negligently causing serious injury	$300,000	Imprisonment up to 5 years

  
  
  * These indicate maximum fines. At their discretion, judges can fine a lesser amount.
  
  Changes to legislation
  • The proposed Bill targets “gross negligence”, and provides for much tougher penalties to be applied in those cases where gross negligence results in the death or serious injury of an employee.
    
  • It is intended to overcome the limitations of the current criminal law and is a recognition that the offence of manslaughter in circumstances of gross negligence has been difficult to apply to the body’s corporate entities. (Given that a single responsible senior officer cannot usually be identified because of the number of people involved in any decision.)
    
  • The Bill overcomes these difficulties by allowing the conduct of any number of the body corporate’s employees, agents or officers to be considered.
    
  • The test is whether when all of this conduct is considered as a whole, the body corporate can be considered grossly negligent, so that it should be found criminally liable. This will allow both large and small corporations to be effectively prosecuted.
    
  • Further, the Bill is intended to cut through the difficulties presented in prosecuting those senior officers who act through the body corporate.
    
  • At present, a senior officer must be found to have substantially caused death or serious injury. This is often difficult to prove because many people will have contributed to the offence.
    
  • The proposed offences allow senior officers to be prosecuted where they have materially (as opposed to substantially) contributed to the death or serious injury caused by a body corporate.
  
  Proposed changes to penalties
  
  

  Breach	Body Corporate	Officer
  OHS Act - Indictable offence	$600,000	$120,000
  OHS Act - Summary offence	$80,000	$30,000
  Industrial manslaughter	$5 million and/or be directed to: publicise offence and consequences; notify certain people or groups of people of above; perform specified acts/projects for public benefit	Imprisonment up to 5 years; $180,000
  Negligently causing serious injury	$2,000,000; and as for manslaughter	Imprisonment up to 2 years; $120,000

  
  
  Implications
  • Only entities with unsafe work practices are in danger of prosecution under the Occupational Health and Safety legislation.
    
  • Further, the proposed Crimes Act offences will only apply to those rare cases where the unsafe work practices are so bad as to demonstrate criminal (or gross) negligence. Businesses with safe work practices will be unaffected.
  
  How is this risk managed?
  
  Systematically identify existing risks in the workplace and effective methods for controlling them.
  
  Provide:
  • Safe machinery and equipment – regularly maintained, appropriately guarded, used only by experienced personnel
    
  • Safe systems of work – consistently applied procedures which minimse risk
    
  • Safe workplaces – appropriate amenities, regular hazard inspections.
    
  • Clear and appropriate instruction, training and supervision so that employees can safely undertake their work.

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