Breaking The Myths Around Industrial Manslaughter
29th March 2019
By James Thompson
The case for “Industrial Manslaughter”
Let’s face it, no one wants to get hurt at work, nor do we want to see our colleagues, our mates, be injured either. However, many of us know someone who has had forced time away from work due to an injury sustained at work. A few of us, know someone who has died at work from a work accident. However, some employers will continue to cut corners to save time and/or money on jobs while putting themselves, their employees or even the public at risk of harm or death.
So, what is industrial manslaughter and why was it introduced? To explain this, first I need to explain the concept of a separate legal entity. Many business owners I speak to when asked why they have a company structure, say something along the lines of it protects their personal assets if the company gets sued, or goes into liquidation. The reason this can be the case is that a company is recognised as being separate to the owners or directors of the company, hence why your personal assets can be safe if things go wrong. However here in lies the problem. If a worker is injured while working for a company, in many cases the proceedings are against the company, not the director. However, what happens if it is a criminal offence, you can’t put the company into prison, and the directors are distinguishable from the company.
Previously, it was possible to charge officers and others under the Criminal Code for their actions leading to serious workplace incidents. To do this, prosecutors needed to show a direct link between the actions of the officer and the serious incident. This is difficult in many cases for smaller companies, while near impossible for large corporations where there can be several layers of managers between the people at the top, and the workers ultimately affected.
In May 2018, the Victorian Premier Daniel Andrews stated that 234 Victorians have died at work in the past decade. Mr Andrews said on announcing his promise for Industrial Manslaughter to become a new criminal offence that “It's my sincerest hope that these laws will never need to be used… that instead, they'll change our workplaces and change our culture.”
There has been some suggestion that industrial manslaughter laws will not be as effective as hoped and may be unlikely to save lives in the workplace. This has centred around the wording of the legislation not encompassing corporate cultures, and more importantly, the lack of deterrence by imposing a potential jail sentence. Since many corporate directors have a clean criminal record, involvement in public and community service, they could benefit from a multitude of character witnesses. The defence counsel would tell the judge that they have already suffered as a result of their actions by the damage to their reputation and the likelihood that they would not work in their chosen career again.
In 2004 the ACT was the first to introduce Industrial Manslaughter. In the ACT, prosecutors do not need to prove negligence by the officers, simply that a corporate culture existed that tolerated, encouraged, directed non compliance with the relevant health and safety legislation, and a worker died as a result. So this could be that an employer was using trestles and planks and would routinely not set up the handrails because it took too long, if on one occasion a worker fell and died as a result, then the officers of that company could face criminal prosecution including a custodial sentence. However, it must be noted, that I have not been able to locate a single instance of this provision being enacted.
Jail time a reality for corporate directors
This now brings me to Queensland. While off to a much later start than the ACT with industrial manslaughter being brought into effect in October 2017,, there has been a recent case where a company director, Mr Lavin, was found guilty and served with a 1 year jail term suspended after 4 months and a $1 million fine. This case was Queensland’s first successful prosecution of a Category 1 offence of reckless conduct.
In the case of Mr Lavin, a company that he was a director of was contracted to perform roofing works to a factory at Cooroy, Queensland. During this time a worker, Mr Te Amo tragically fell six metres from the “live edge” of the roof to his death. The cost of installing the safety rails necessary for the work to be completed, was specifically allowed for in the contract price of the job. This would have cost about $5,000, on a contract of almost $300,000. Rather than installing edge protection, the company Multi-Run Roofing and Mr Lavin implemented an alternative system of completing work on the live edge utilising harnesses and two scissor lifts. This method was not being used on the day of the accident.
In Victoria the first prison sentence for a breach of workplace health and safety provisions was handed down in December 2018. Ms Jackson, 72, who owned a scrap metal yard, was sentenced to six months in prison, and ordered to pay a $10,000 fine after a person fell from the tynes of the forklift and died as a result of the accident. Ms Jackson was charged, and pled guilty to two charges under the Occupational Health and Safety Act 2004 (Vic) for; failing to prevent other persons from being exposed to risks arising from her undertaking, and recklessly engaging in conduct that places or may place another person who is at a workplace in danger of serious injury.
So, what does this mean for employers?
People have previously received suspended sentences in Queensland and Victoria, and individuals have received custodial sentences under the Criminal Code following serious and catastrophic workplace health and safety incidents, however the recent verdicts in Queensland and Victoria have demonstrated that the prosecutors and the courts are taking their new powers under industrial manslaughter provisions seriously.
I have heard employers, supervisors and employees say that they believe that the job of the state’s Health and Safety regulators is to make life difficult for the person doing the work, that they don’t care about safety, only what their clipboard says, or that they just want to drive people out of business by making it too difficult to comply with legislative requirements. Through my interactions with Workplace Health and Safety Inspectors, this is not the impression that I have got. They seem most concerned with preventing workers from being injured or killed while earning an income to support their families. If there is a failing though, they are prepared to hand out improvement notices, issue infringements or refer the case to prosecutors. The role of Inspectors is demanding and, in many cases, thankless. There are similarities to police too, in that no one enjoys it when they are handed an infringement notice (traffic ticket) by a police officer, however most are very grateful when the police turn up in situations when they really need the assistance.
Complying with health and safety legislation, regulations and codes of practice should not continue to be viewed as ‘optional’ by employees or their employers. The consequences are serious. The punishments are also serious. Is saving some money on your next contract worth risking up to 20 years in prison (individual), or a $13,055,000 fine (company)? No, that is not a typo, the maximum penalty for a company structure is $13 million – plus a few thousand, however what’s a few thousand when you’re already in the millions?
Stay safe out there everyone, because as bad as the punishments sound for non-compliance, do you think you could live happily for the rest of your life knowing that your actions (or inactions) led to the serious injury or death of someone that you employ, someone you work with, a mate?
Former painting contractor.
Currently studying Bachelor of Commerce in Employment Relations and accounting at Griffith University.
Any possible leads for an employment opportunity in this sector would be greatly appreciated, please contact me on LinkedIn or 0477 108 176 if you may be able to help a fellow painter.
The information contained in this article is for general interest only. The content does not constitute legal advice and should not be relied upon as such. The application and impact of laws can vary widely depending on specific circumstances. Specific legal advice should be sought from an independent professional before acting upon information contained in this article.
 legal term for a person who can make substantial decisions about the company, or someone who can significantly affect the financial standing. From section 9 of the Corporations Act 2001 (Cth)
 Anderson, S. (2018, May 26). Daniel Andrews promises industrial manslaughter to become new criminal offence. ABC News. Retrieved from https://www.abc.net.au/news/2018-05-26/daniel-andrews-criminal-offence-industrial-manslaughter/9803490
 Sarre, R. (2018, June 5). Why industrial manslaughter laws are unlikely to save lives in the workplace, Retrieved from https://theconversation.com/why-industrial-manslaughter-laws-are-unlikely-to-save-lives-in-the-workplace-97459
 Blake, K., Collier, C. (2018, August 23). Update on industrial manslaughter legislation, Retrieved from https://www.minterellison.com/articles/update-on-industrial-manslaughter-legislation
 Queensland Law Society. (2018, June 20). Queensland industrial manslaughter laws – countdown to 1 July, Retrieved from https://www.qls.com.au/About_QLS/News_media/News/Queensland_industrial_manslaughter_laws_countdown_to_1_July
 Workplace Health and Safety Queensland. (2019, February 12). Jail sentence and $1m fine over roofing fall fatality [Press release]. Retrieved from https://www.worksafe.qld.gov.au/news/2019/jail-sentence-and-$1m-fine-over-roofing-fall-fatality
 Cassidy, T. (2019, February 7). Company director jailed for a year and fined $1m over workplace death. ABC News. Retrieved from https://www.abc.net.au/news/2019-02-07/director-jailed-in-workplace-death-trial/10790852
 Jackson, S., Inglis, J. (2019, February 11). Queensland director imprisoned for reckless conduct in WHS duty breach, Retrieved from https://www.sparke.com.au/insights/queensland-director-imprisoned-for-reckless-conduct-in-whs-duty-breach/
 Jackson, S., Carosi, G. (2019, January 16). First prison sentence handed down for breach of WHS duty offence, Retrieved from https://www.sparke.com.au/insights/first-prison-sentence-handed-down-for-breach-of-whs-duty-offence/