Department of Justice and Community Safety

INDUSTRIAL MANSLAUGHTER

When could an employer be convicted of industrial manslaughter?

An employer could only be convicted under the proposed laws if a court was satisfied, to a criminal law standard (that is beyond reasonable doubt), that the employer had been criminally negligent or reckless and that this negligent or reckless behaviour had caused the death of a worker. The death of the worker would need to occur in the course of the worker’s employment. The definition of negligence and recklessness are set out in sections 20 and 21 of the Criminal Code.

The concept of criminal negligence is very different to civil negligence, and employers would not be charged with manslaughter and imprisoned, simply because they could be successfully sued for negligence. If a workplace fatality occurs, there must be evidence of criminally reckless or negligent conduct by the employer that led to the workers death for a prosecution to occur.

An employer who has taken all reasonable steps to ensure the safety of their employees has nothing to fear from this legislation. The Crimes (Industrial Manslaughter) Amendment Act 2003 (the Act) is designed to catch those employers who recklessly expose their employees to substantial risk of injury or who engage in such grossly negligent conduct that criminal punishment is warranted.

Why is industrial manslaughter legislation necessary?

The Crimes (Industrial Manslaughter) Amendment Act 2003 has been developed to address gaps in ACT criminal legislation regarding the prosecution of companies for manslaughter.

Currently, the general manslaughter offence in the Crimes Act applies to anyone who negligently or recklessly causes the death of another person. This includes an employer, so that if an employer who is a natural person negligently or recklessly causes the death of one of their workers, they can already be charged.

However, these days, most people are employed by companies. It is very difficult to prosecute a company for manslaughter, due to antiquated common law principles that are used in Australia to attribute criminal liability to a company. Essentially, the person whose reckless or negligent conduct caused the death of a worker must be proven to be the ‘directing mind and will’ of the company for the company to be held liable. This has only ever been established in one Australian case: R v Denby Pty Ltd [1994] VICSC.

In large companies it is difficult to establish between the directors (who are the ‘directing mind and will’ of the company) and the shop-floor managers whose conduct, in implementing the directors’ policies, has the actual impact on workers. Where the directors’ policies and decisions are what actually caused the death of a worker, or the directors allow a corporate culture to develop that disregards worker safety, the company should be held to account.

The Act addresses these problems by applying the principles of corporate criminal responsibility set out in the new ACT Criminal Code to the new industrial manslaughter offences, making it simpler to prosecute large corporations and putting all ACT employers on an even footing regarding their potential liability where a worker is killed at work.

Just as the law provides for manslaughter charges where a motorist is so negligent or reckless that their driving results in the death of another person, so too will the new law provide for industrial manslaughter charges for an employer whose conduct is so negligent and reckless that it results in the death of an employee. However, the new law imposes no additional burdens on employers in their duty of care to their employees.

Why is the law necessary given that we have so few workplace fatalities?

There have been about 20 workplace fatalities (excluding work-related motor vehicle deaths) since self-government 1989. There were three recorded fatalities at workplaces in 2002/03. We are a small jurisdiction, and it is difficult to compare our fatality rates with those of larger States, due to the comparatively small size of our workforce.

However, the ACT’s comparative fatality rate is not the issue. The Government believes that all workplace fatalities are unacceptable, and will use all avenues available to prevent workplace deaths.

This includes both education and sanctions. It is essential to reinforce employer duties to provide a safe workplace by ensuring that there are severe penalties for serious breaches.

It also means putting all businesses on a level playing field. It is not good enough that an employer, particularly a company, can cause the death of a worker through criminal recklessness or negligence, and not be held to account for that conduct.

However, the Government does not expect that there would be a large number of prosecutions under the new laws, and indeed hopes that the laws will never need to be used, except as a deterrent.

If the laws are designed to prosecute corporations, why would the offences apply to other types of employers?

The Act establishes a new regime for prosecuting manslaughter offences that stem from deaths that occur at work, due to reckless or negligent conduct by an employer. It would be confusing to have industrial manslaughter provisions that only applied to particular workplace deaths (at a workplace of a corporation), while other workplace deaths were treated under the general manslaughter law in the Crimes Act 1900. Therefore, the new industrial manslaughter offences will apply to deaths of employees at all types of workplaces.

The Government wants to ensure all employers take their responsibilities to prevent workplace deaths very seriously, regardless of whether that employer is a union, a club, a community organisation, a corporation or a natural person. And we are making sure that we will have to meet our own standards - Ministers and senior Government officials could also be prosecuted under the new laws.

The Government does not propose any exceptions from the legislation, as all workers are entitled to be protected from criminally reckless or negligent behaviour that kills at work.

When would a ‘senior officer’ be held liable for industrial manslaughter?

A separate industrial manslaughter offence has been created for ‘senior officers’, which includes directors and other senior decision-makers in corporations (drawing on definitions in the Corporations Law), their equivalents in unincorporated associations, and senior Government officials.

The senior officer offence will only apply if the senior officer’s own conduct caused the death of a worker.

There is no element of vicarious liability in this legislation – it is not the case that a senior officer will be held responsible for the negligent or reckless actions of others.

What happens if an employer or senior officer is convicted?

The Act provides for maximum fines of $1 million for companies, and allows the courts to combine fines with orders for companies to undertake ‘community service’ projects, up to a total cost of $5 million.

These are maximum penalties, and the courts will exercise discretion in the appropriate amount of a penalty to be imposed in each particular case. It is necessary to have such high fines, so that the upper limit is sufficiently high to act as a deterrent to large companies.

Natural persons would be subject to a maximum penalty of 20 years imprisonment, a $200,000 fine or both.

These penalties have been set in accordance with penalties recommended by the Model Criminal Code project, endorsed by all Australian Governments, for the offences of manslaughter and dangerous conduct causing death.

Do the new industrial manslaughter law affect my OHS arrangements?

The industrial manslaughter law imposes no new OHS obligations, but good OHS practices will ensure you have nothing to fear from it. You can get information about your OHS obligations by contacting ACT WorkCover.

Workcover