As a business owner, you genuinely care about the health, safety and welfare of your employees simply because it's the right thing to do. But you need to create the right environment to foster their well-being. Otherwise, a deadly accident could have you on the wrong side of the law. It's called industrial manslaughter, and if you don't know about it, or are wondering how it might affect you should someone suffer a fatal workplace injury, this article will provide you with some better context about the law, its criteria to be credibly charged and why it's in the news.
What is industrial manslaughter?
Industrial manslaughter is an offence that can be charged to a business owner in the event an employee — or any other individual who is physically on their property — is killed, be it from a fall, an accident with heavy machinery or any of a number of other worst-case scenarios. Primarily affecting the construction industry, given the high-risk nature of that line of work, industrial manslaughter is punishable by law and affects those business owners who show reckless disregard for the safety of their employees or anyone else.
What constitutes industrial manslaughter?
As with most other laws in Australia, the burden of proof falls upon the state to find a person guilty of industrial manslaughter. Thus, the prosecution must be able to establish a clear linkage to the death of an individual and the business owner's actions, or inactions. Here are a few of the benchmarks that must be reached in order for a defendant to be credibly accused of industrial manslaughter:
- The person charged with the crime must be a business owner, a "body corporate" — meaning a corporation — and not an employee or volunteer.
- The individual charged with the offence must be negligent and therefore responsible for the death due to knowingly not following or implementing the appropriate safety measures.
- The prosecution must establish the business owner had a duty of care to uphold, in accordance with state legislation.
- The victim — be it an employee or any other person — must have been obliged to receive that duty of care.
What constitutes industrial manslaughter is slightly different from one state to another, but these are a few of the criteria that, if sufficiently proven, can lead to a conviction.
What is the penalty for industrial manslaughter?
Much like the definition of industrial manslaughter varies according to the state, the same is true for the resulting punishment. The court has the discretion to determine the appropriate sentence, but in terms of the maximum penalty, it's 20 years imprisonment among individuals and a financial penalty of $16.5 million for a body corporate.
How many people are killed at work each year?
In a country of approximately 27.1 million people, workplace deaths in Australia are fortunately rare, but they do happen every year. In 2020, according to Safe Work Australia, 182 people in the country were killed while on the job, usually as a result of a work-related injury. So far this year, preliminary data shows 74 Australians were killed at the workplace. A majority of these deaths (16) were in the agriculture, forestry and fishing industries, with construction accounting for the second highest number (6).
Why is industrial manslaughter in the news?
If you're familiar with Australian law, you know that industrial manslaughter is not exactly new. It's been part of the criminal code for a number of years now. But in August of 2021, it became an offence that is prosecutable under the Work Health and Safety Act 2011, which was triggered by the passage of WHS Amendment Bill 2021. It replaces the law that existed within the Crimes Act 1900. In addition to tougher sentencing, the latest iteration of industrial manslaughter also broadens who can be charged and the people who are owed safety. Previously, only "senior officers" could be prosecuted but now it can affect any and all persons conducting a business or undertaking, or PCBUs. Victims include anyone who dies in a workplace environment, not just employees.
Additionally, for the first time since the law has been on the books, an individual was recently convicted of industrial manslaughter. Jeffrey Owen of Gympie, who owns a repair services company, was sentenced to five years in jail following the death of a friend who was killed when the pair were moving heavy machinery with the help of a forklift. Because Owen didn't have a licence to operate the forklift, the court deemed he was negligent.