Industrial manslaughter – a WA offence?
ON November 27 the Australian Capital Territory became the first jurisdiction in Australia to enact industrial manslaughter laws – now part of the ACT Crimes Act – and not the ACT’s occupational health and safety laws.
The new law commences on March 1 and makes an employer or senior officer, who recklessly or negligently causes the death of a worker, liable to a maximum fine of $250,000 (individual) or $1.25 million (a company) and/or a maximum prison term of 25 years.
"Employer" includes contractors and companies using labour-hire employees.
"Senior officer" includes directors, secretaries and persons who participate in making decisions that affect a substantial part of the business of a corporation.
"Worker" extends to employees, independent contractors, apprentices or trainees and volunteers.
To be guilty of the offence, a relevant person must by act or omission (failure to act) substantially contribute to the death of a worker, in circumstances where that person is reckless about causing senior harm, or negligent about causing the death of a worker.
Recklessness means contemplating the chance of the act causing serious harm to an employee with indifference.
If death ensues a person is guilty of industrial manslaughter even if the possibility of death was not contemplated.
On the other hand, manslaughter by negligence requires a gross departure from the standard of care required, in circumstances where there is a high degree of risk of the occurrence of death.
While the conduct is not as blameworthy as manslaughter by recklessness, the relevant risk must be death and not merely serious harm.
Is a similar law likely to be enacted in Western Australia?
In July Consumer and Employment Protection Minister John Kobelke said: "The option to imprison people found guilty of gross negligence, leading to serious harm or death, is among significant legislative reforms …"
With approximately 22 workplace death in WA this past year and a Labor government committed to reforming occupational safety and health legislation, WA may well be faced with an ‘industrial manslaughter’ bill by April.
If similar laws to those in the ACT were enacted in WA, directors and responsible managers will need to put systems in place that ensure the board and responsible managers are directly involved in safety and health monitoring and that proper consideration is given to the decisions and actions for which they are directly responsible.
Rod Collinson, solicitor - 9429 7637
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