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.