Victoria appears to be months away from implementing new workplace manslaughter legislation under which employers will face fines of almost $16 million and individuals up to 20 years in jail if they are found responsible for negligently causing the death of an employee.
If the laws are introduced, Victoria will become the third jurisdiction, after the ACT and Queensland, to have industrial manslaughter legislation on the books.
Important decisions that affect workplace safety are usually made jointly, or in succession, by different individuals. Criminal laws generally require a single person who can be identified as at fault for all material elements of an event on which a worker has died. This has meant that in almost all cases, when things go wrong, no individual is able to be criminally prosecuted.
Families of victims have been outspoken about the need to toughen penalties against employers, particularly larger companies who may see the relatively small fines imposed for devastating breaches of workplace safety.
The ACT laws, for example, address this issue by requiring that prosecutors need only make out that a corporate culture existed within a business which resulted in the fatal accident, rather than proving an act or omission amounting to negligence.
However, it remains unclear what effect similar such laws might have if introduced in Victoria. Queensland’s laws have not been around for long and although the ACT legislation has been in place for 15 years there have not been any prosecutions under the industrial manslaughter provisions.
The key purpose of an industrial manslaughter law is arguably deterrence. By upping the personal stakes for senior managers, the idea is that companies will think twice about cultures and management practices that cut corners on employee safety. However, for this to work any proposed law will need to have a sharp bite: a critical concern is that although the maximum penalty for an offence may be high, senior managers may be able to successfully argue that they have clean criminal records and are unlikely to reoffend in order to escape with relatively light sentences.
Despite these issues around how the laws may play out in the future, recent examples of what appear to be preventable deaths in the workplace speak to the need for something more to be done to ensure that employers take their obligations around workplace safety seriously.
Industrial manslaughter laws form just one part of the plan in this respect. Other options, such as whistleblower protections, ensuring that union safety officers have a right of entry to investigate safety concerns, and strengthening safety training requirements, for example, are also critical to preventing deaths in the workplace.
The important thing industrial manslaughter laws can do is put employers and the community generally on notice that standards are changing. A fundamental community expectation must be that workers should not be injured or killed while at work. The threat of criminal prosecution for those in charge will hopefully go some way to spreading that message.
David Taylor, a principal of Segelov Taylor Lawyers is an accredited specialist in employment and industrial law. He advises unions and employees on obligations and rights that arise under the Work Health & Safety Act.