Authored by MBA Lawyers Partner and Personal Injuries expert Mitchell Clark
Over the last two years there has been an enormous increase in penalties against employers who, through their behaviour, cause death of employees. The laws are set by each of the State Governments and are referred to as ‘Workplace Manslaughter’ laws.
Currently, a boss can be jailed for 25 years and the employer company fined up to $16.5 million if found guilty of industrial manslaughter.
What we think
Heavy-handed? Arguably, yet deaths in the Australian workplace are tragic, with wide-ranging personal and financial costs, with an average of 186 workers killed each year. The most at-risk workers (35% of all deaths) being machinery operators and drivers where fatality can often be avoided through adoption of employers’ safety management systems.
The strengthening of the laws’ power has been fuelled by the societal expectations after recent public disasters including the 2016 Dreamworld Thunder River Rapids ride accident, which killed four people.
First Australian company convicted this year
In June, Brisbane Auto Recycling became the first Australian company to be convicted of an Industrial Manslaughter offence. Its employee died when crushed between side of truck and reversing forklift.
The company was fined $3 million and its two directors sentenced to 10 months jail (suspended).
District Court Judge Rafter noted that measures implemented after the accident (such as signage and use of plastic bollards) cost very little yet greatly improve safety.
In Victoria, the State Government introduced controversial expansion of the existing workplace manslaughter laws as part of that government’s mandate to favour the rights of workers. In a curious twist, that same law (which many commentators considered to be overly oppressive towards employers) could now be used to jail Victorian politicians (the same people who introduced the new laws) due to the politicians’ purported failure in handling the management of the virus crisis in Victoria where the second wave killed over 750 people.
Our Governments declare that these enhanced penalties are ‘justified’. Yet, existing laws already provide a strong remedy, including the offence of manslaughter under the general criminal law.
And, will the new laws reduce the number of workplace fatalities? The concern is that the law divides employers and employees and it does not assist in creating a ‘working together’ culture. Workplace safety is a shared responsibility, and all people hold safety duties. The focus has been on risk, whereas now the new law places focus on outcome.
What you can do to protect you and your business
Many employers will be shocked on realising the severity of the penalties and the extent in which a charge under the Government law can be brought against individual directors, not just the corporate entity.
A key step forward will require a heavy focus on worker engagement and ensure that there is a strong safety culture. Governments have highlighted that the focus will be on an organisations’ ‘culture of compliance’.
It’s important that employers are aware of their safety obligations and ensure that work health safety systems are in place.
You need to be clear that you are serious about good Workplace Health and Safety through your personal and business practices by spending time, money and resources on providing a safe and health working environment.
Within your business practices you should make your safety policy visible to staff and visitors, include your staff in planning and demonstrate your focus on safety on your website and social media pages.
Regularly check your systems and activities to make sure any improvements are maintained.
Engaging a qualified lawyer to conduct an independent evaluation of your organisation is a great way to protect yourself.
Here at MBA Lawyers we can assist you with:
- Privacy obligations
- Worker classifications
- Compliance with workplace policies
- Workplace health and safety obligations
- The rules regarding fair dismissals
- Establishing the correct legal structure of your business
- Representing your business during negotiations in the event you have been found to be non-compliant