Industrial manslaughter laws and safe systems of work - risk mitigation solutions
No one likes legislation especially when its criminal legislation.
A criminal offence comes with a criminal record for life. As in the case of industrial manslaughter, it also means a [criminal] loss of life. Someone has died – someone has paid the ultimate price for another person’s failure to act in providing a safe system of work.
Industrial manslaughter is a crime where the action or inaction of an employer results in the death of an employee. Industrial manslaughter generally has a much broader scope than standard criminal manslaughter. Like criminal manslaughter, you are unable to insure against liability for industrial manslaughter.
In Australia industrial manslaughter laws are:
currently in place in Queensland and the ACT.
proposed for introduction in Victoria and the Northern Territory.
being discussed in Western Australia.
unlikely in New South Wales, South Australia or Tasmania in the near future.
However, additional to the above are the proposed changes in the latest [Dec 2018] review of the federal government’s Model WHS Laws [Final Report Dec 2018] states:
‘Workplace injuries and deaths ruin lives and shatter families. It is critical that the community is confident that the model WHS laws enable justice to be administered fairly and appropriately. I have made a series of recommendations dealing with penalty levels, sentencing guidelines, prohibiting access to insurance for payment of fines and the introduction of a new industrial manslaughter offence.’ – Marie Boland, Safe Work Australia Independent Reviewer.
The recommended changes to the Model WHS Laws include a new offence of industrial manslaughter be included in the model WHS laws where there is a gross deviation from a reasonable standard of care that leads to a workplace death. Amendments to include that a duty holder commits a Category 1 offence if the duty holder is grossly negligent in exposing an individual to a risk of serious harm or death.
The offence should provide for gross negligence causing death and include the following:
The offence can be committed by a PCBU and an officer as defined under s4 of the model WHS Act.
The conduct engaged in on behalf of a body corporate / business is taken to be conduct engaged in by the body corporate / business.
A body corporate /business’s conduct includes the conduct of the body corporate / business when viewed as a whole by aggregating the conduct of its employees, agents or officers.
The offence covers the death of an individual to whom a duty is owed.
RISK MITIGATION SOLUTIONS
Safe systems of Work Provide safe systems of work including the various requirements as prescribed in ISO 45001: 2018 Occupational health and safety management systems - Requirements with guidance for use.
Evidence of Compliance Record and maintain evidence of compliance to the law and ISO 45001.
Technology and analytical improvements Show incremental safety improvements through technology solutions and data analytics as a measure of due diligence.
SAFE SYSTEMS OF WORK
Safe systems of work are non-negotiable. It’s the law that safe systems of work are available to employees and others working on behalf of an organisation [body corporate / business]. This DOES NOT ON INCLUDE generic SWMS, any document that is not developed in consultation with the workforce or relevant to the work and its location [taking into consideration local risks].
Don’t take short cuts!
Generic safety material is proof that no due diligence to safe systems of work exist, that safety is not taken seriously. Of course the argument is inevitably that safety costs time and money. Failure to provide systems also cost lives and serious injury. Look to technology or other equivalent time savings opportunities without compromising safety.
Use technology solutions
Electronic forms producing SWMS, checklists, inspections/tests and audits show due diligence and are proven records of the activity and workplace consultation and participation. They are also quicker and more traceable than hard copy forms, are traceable and provide dashboard reporting – an effective solution.