Dying for Change? Potential New Industrial Manslaughter Laws

Daniel Anstey, Graduate Associate

DYING FOR CHANGE – NEW INDUSTRIAL MANSLAUGHTER OFFENCES

Background

The recent and unprecedented jailing of a director in Queensland under newly-enacted offences in the Work Health and Safety Act 2011 (Qld), serves as a strong warning to organisations that the landscape has shifted when it comes to penalties for WHS offences.

In the wake of several highly-publicised workplace deaths there has been a strong push to introduce industrial manslaughter offences into WHS legislation across Australia. Alongside offences already in force in Queensland and the ACT, amendments are currently making their way through the Victorian and South Australian Parliaments. Although yet to confirm a position, NSW is the state with the highest occurrence of workplace deaths and is likely to follow suit.

Furthermore, Safe Work Australia’s Boland Report Review of the model WHS Laws and the Senate Inquiry into Industrial Deaths, both recommend the introduction of such offences.

Penalties

The Boland Report recommends that potential penalties for employers negligently causing death should be increased. This is certainly the case with the Victorian Government’s proposed law, with companies facing fines of up to $16 million and senior officers in breach their duty of care facing up to 20 years’ jail time.

Another recommendation of the Boland Report is a prohibition on insurance policies which purport to cover liability for monetary penalties under WHS legislation.

How can organisations protect against liability for industrial manslaughter?

Review your organisation’s WHS system and policies: The best way to protect your organisation and its senior officers from liability, is to ensure that your WHS policies and management systems are comprehensive. This will be particularly important regarding the liability of an organisation for the actions of its senior officers. An ability to demonstrate that an officer was engaging in conduct outside the scope of his employment may potentially save your organisation millions in penalties.

Review your workplace’s ‘WHS culture’: Poor work-place culture and attitude towards safety has been a large contributor to many of the tragic incidences of workplace deaths. Cutting corners and saving costs should never be allowed to take precedence over safety. Cultures and attitudes can be hard to change once ingrained in an organisation, and the example must be set from the top.

Ensure due diligence from directors and senior officers: As directors and senior officers with a duty of care to workers may be personally held accountable, they must be thorough with their due diligence to avoid potential prison time. This includes:

  • Having an active role in planning and implementing health and safety initiatives, or if this is not the officer’s role they should make decisions which allow for the appropriate measures to be taken.
  • Being aware of all officers who have WHS obligations, and whether relevant officers are adequately trained and qualified,
  • Ensuring that directors and senior officers understand the nature and extent of their WHS obligations, and ensuring that these obligations are met.
  • The collection of data and reports to guide WHS decision making in an organisation.
  • Frequently consulting and receiving feedback from workers on any WHS concerns they may have within the organisation.

Review incident response plans: While accidents may happen, to minimise legal implications, ensure that your organisation has clear processes in place for when an incident occurs.

Review insurance and risk allocation: As mentioned, the Boland Report not only recommends a significant increase in potential penalties, but also a prohibition on covering the risk through insurance. Make sure to be aware of any changes in this space to avoid severe financial consequences for your organisation.

Conclusion

Despite its harsh appearance, an offence of industrial manslaughter is intended to incentivise businesses with poor WHS cultures to improve and it is hoped it will be an effective deterrent to the kinds of practices that result in tragic workplace deaths.

If you require advice on how to prepare your organisation for these changes, please feel free contact People + Culture Strategies on (02) 8094 3100.

 

International Bar Association (“IBA”) Annual Employment and Diversity Law Conference 2019 Copy

George Stent, Paralegal 

At the IBA’s recent Annual Employment and Diversity Law Conference, Founder and Managing Principal of People + Culture Strategies, Joydeep Hor was a guest speaker on the topic of Artificial Intelligence (“AI”) bias and data transparency in the legal workplace. Joydeep is Secretary of the IBA Diversity and Equality Law Committee, and he was joined by guest speakers from Latin America, Continental Europe and South Asia. Joydeep spoke to the difficulties that AI presents for managers and HR professionals in terms of the potential for inconsistent treatment, unequal opportunities and ultimately, unlawful discrimination, from the bias of AI in the workplace.

What is AI?

 AI refers to digital computers performing tasks that would usually be performed by “intelligent beings” such as people. At the conference, Joydeep described how AI achieves this by being similar to the neuron connections in the human body. These connections are called synapses and form a complex network. It is through this network that the brain receives and processes information enabling the human to learn. He explained that certain branches of AI work with “artificial neural networks”. It is these programs that imitate the functioning of the human brain. Information is then entered as input on one side, processed, and the result is output on the other side.

 Advantages and Opportunities of AI in the workplace

All businesses, including law firms are investing in AI technology. The Wall Street Journal estimates that spending on AI by companies will grow from $8 billion in 2016 to $47 billion by 2020 – which is an almost 600% increase. Joydeep attributes this increase to AI’s ability to optimise business processes by enhancing efficiency and automating time consuming administrative tasks. For example, in a legal context, AI is able to review contracts and undertake legal research almost instantly. One such software is “ROSS Intelligence”, which was used in a recent test where a partner at a law firm was able to find a matter that was identical to the firm’s case almost instantly, while his own research took ten hours. Joydeep and the panel noted that the research was not only efficient, but highly accurate.

However, at the conference, Joydeep questioned whether productivity control is automatically accompanied by greater effectiveness at the workplace. In making this point, Joydeep gave the example of the Henn Na Hotel, a hotel in Japan almost entirely staffed by robots. The hotel, shortly after opening, had to dump half of the robots due to them “annoying” the guests, not being capable of the jobs they were designed for, or creating more work for their human counterparts.

Risk of AI in the Workplace

 Joydeep also raised the impact that AI has on the hiring, firing and promotion decisions of HR professionals. AI has been introduced recently to screen CVs to find the best possible applicant. Joydeep therefore raised how the lack of transparency in recruitment decisions may cause a problem for employers. In illustrating this point Joydeep highlighted that the vast increase in data sources may result in employers not being aware of what information has been used to make recruitment decisions and therefore what risks may arise. This problem is compounded by the fact employers and work councils often do not understand the numerical codes according to which the algorithm acts. This may mean employers cannot guarantee that an AI system has not made a recruitment decision that does not carry a risk of a discrimination claim. Joydeep recommends that in order to prevent these claims from arising employers should monitor the data input at the very initial levels and regularly review the systems they use. He suggests that employers using AI should prepare themselves to explain why one applicant was hired and another one rejected.

 

Regulated Termination Benefits (Corporations Act)

Organisations need to consider the termination benefits that are payable to their employees post-termination to ensure that they are complying with the legislative framework and obligations to their shareholders. PCS can assist you in the structure of the remuneration and benefits of your employees and the drafting of employment contracts to ensure that when termination of an employee occurs that you have upheld your legal obligations.

Unpaid Work Arrangements

Some businesses offer opportunities for workplace experience or rely on volunteers. However, the Fair Work Ombudsman is taking a much stronger focus on such arrangements. If these arrangements are not properly structured, your organisation could inadvertently be creating an employment relationship thereby subject to minimum employee entitlements. As such, PCS offers planning, assistance and the provision of bespoke unpaid work documentation for approved vocational placements, genuine volunteers, and other lawful arrangements.

Workplace Surveillance

Surveillance is carried out in workplaces in a number of different ways including, but not limited to, cameras in the office and using applications to track internet usage. Organisations are likely to have measures implemented to ensure security and safety of the business and its staff. It is paramount that surveillance measures implemented in the workplace are compliant with statutory regulations and obligations, as organisations will place themselves at significant legal risk should they not be compliant. PCS offers a comprehensive suite of services allowing your organisation to utilise surveillance in accordance with the law.

Long-Term Medical Based Absenteeism

Managing long term medical absenteeism can be frustrating for employers and detrimental both financially and culturally to the organisation. PCS can help employers develop a comprehensive strategy to minimise the impact of the challenges that arise from long term medical absenteeism. PCS has the legal and commercial knowledge to provide the advice to employers that enable employers to make informed decisions for their business needs and interests.

Flexible Work Arrangements

Work flexibility is coveted by many employees in today’s workforce and a legislatively defined group of employees will have the right to make a request for flexible working arrangements under the National Employment Standards. Employers may wish to take a proactive approach to flexible working arrangements to attract talented people and enhance satisfaction and retention among existing staff. Organisations must consider the disruption, risk management and WHS obligations that may arise such as in working from home arrangements. PCS can provide wholistic recommendations on flexible work agreements and advice for determining whether such a request is feasible for your business.

Enterprise Agreements / Agreement Making

The agreements covering employees in any organisation are an important source of duties, obligations and entitlements for both employees and employer. Organisations who fail to have adequate agreements, that is to the terms of the agreement such as rates of pay and leave and termination entitlements, face significant legal risk and negative culture in the workplace. Therefore, it is essential that employers undertake an appropriate and strategic bargaining process to ensure an agreement is reached that mutually benefits employer and employee. PCS offers specialised and comprehensive services to ensure all agreements are risk-minimised and legally compliant.

Business Protection Issues (e.g. Departure of Key Employee to Competitor)

The termination of an employee’s employment can have a real impact on the current and future interests of a business. It is important that organisations have the structures in place to be able to protect their business and if termination does occur that they are able to react appropriately in a timely manner. PCS can provide your organisation with the proactive and reactive options available to help you protect your business brand and interests including drafting appropriate restraint clauses.

Transfer of Business

The transfer of business involves legal and cultural challenges including redundancies, liability for the transfer of employment entitlements, and how to merge long serving employee positions. With your divestments and acquisitions it is therefore important to know what roles exist within an organisation, those terms and conditions of employment, and what parts of the business are performing in line with your expectations. As well as covering off the mandatory legal considerations, PCS can provide strategic guidance for your organisation to manage these cultural issues that arise in the transfer of business.