Employer liability for accidents at work is a relatively new and rapidly evolving legislation in many states in Australia. With the majority of governments implementing industrial manslaughter charges in the last five years, criminal convictions remain few and far between. The debate still stands on whether the laws should be more widely enforced or whether it’s a step too far to make employers criminally liable for accidents and fatalities that happen in their workplaces.
We’ll take a look at the current legislation in place and the arguments on both sides of the fence.
The Current Legal Framework
The first state to introduce a charge for industrial manslaughter was the Australian Capital Territory in 2004, although it would take 12 years for the next state, Queensland, to follow suit in 2017 following the tragic deaths of four people at the Dreamworld theme park the previous year
Victoria and the Northern Territory both introduced laws in 2020, and the final two states to implement legislation were Western Australia in 2022 and South Australia in 2023. As of writing, Tasmania remains the only state not considering adding them, as New South Wales is currently in consultation.
At present, a case qualifies as industrial manslaughter in Queensland if:
“a worker dies, or is injured and later dies, in the course of carrying out work for the business or undertaking (including during a work break); and the PCBU’s, or senior officer’s, conduct caused the death of the worker (i.e. the action or inaction of the PCBU, or senior officer, substantially contributes to the death); and the PCBU, or senior officer, is negligent about causing the death of the worker (i.e. the person’s action or inaction departs so far from the standard of care required).”
What this essentially means is that if someone dies as a result of the negligence or actions of their employer whilst undertaking work from them, the company and/or the primary decision maker and manager for that worker could be charged with industrial manslaughter. Businesses can be fined up to $10m, and senior officers can face up to 20 years behind bars.
Industrial Manslaughter Cases in Queensland
Compared with other states in the country, Queensland has been quite active in bringing industrial manslaughter charges. Here are some cases and convictions that have taken place.
Brisbane Auto Recycling Pty Ltd was found guilty in 2020 and fined $3m after a worker was killed by a reversing forklift driven by an unlicensed driver. The two company directors, classed as “senior officers”, were also sentenced to 10-month suspended sentences.
In 2022, Jeffrey Owen was given a 5-year suspended prison sentence after negligent and unlicensed use of a forklift led to his friend being crushed by a generator when helping Owen at his work. The small business also had no health and safety procedures in place.
Orko Fertilizers Pty Ltd was charged with industrial manslaughter due to the death of one of their workers in 2020, although had a plea accepted on a lesser charge and instead were fined just $250,000.
Two cases in 2021, one brought against MSF Sugar Pty Ltd for the electrocution of one of its workers, and another against Western Meat Exporters Pty Ltd after an employee sustained fatal injuries at one of its abattoirs were dismissed.
Arguments for Industrial Manslaughter Charges
Many believe that the industrial manslaughter laws have been a long time coming. Before the laws were put in place, businesses were able to pay off incidents and fatalities with no real further action taking place to prevent incidents in the future.
In particular, larger companies will often buy into insurance schemes to cover the cost of OHS prosecutions brought against them, essentially avoiding the consequences of their actions. The introduction of industrial manslaughter charges brings full criminal culpability and the possibility of jail time for senior individuals as well as hefty fines.
With health and safety prosecutors bringing forward successful cases, it is thought that the laws will provide a successful deterrent to shoddy workplace health and safety practices, preventing future fatalities and further safeguarding workers.
Holding businesses and individuals liable for industrial manslaughter is also seen as a way to provide justice for victims and more closure for families who have lost loved ones to negligent business practices. Rather than dealing with a faceless enterprise, they instead can see individuals held personally accountable alongside the company as a whole.
Arguments Against Industrial Manslaughter Charges
On the other side of the coin, many believe that the introduction of industrial manslaughter charges is completely unnecessary and ineffective in promoting better workplace health and safety outcomes.
Often, cases can take between 3 to 5 years to close, after which time learning opportunities and the capacity to be able to make swift and informed health and safety improvements are greatly diminished and often overshadowed by the criminal charges brought in proceedings.
Additionally, industrial manslaughter cases are seen as particularly punitive against smaller businesses, which also seem to be disproportionately targeted by the new charges. Convictions and large fines could potentially cripple businesses, leaving them little capacity to implement the required improvements and potentially leading to job losses and business closures, impacting far more people than those criminally involved in the incident.
Some proposed alternatives put forward include placing more focus on learning lessons from incidents and creating requirements for senior personnel within the business to be held accountable and to explain how their failings led these accidents to occur. Family and relatives should also be more closely involved with the process, allowing them to be able to gain a sense of justice and closure, with the knowledge that recommendations will be given and implemented in a timely manner.
This would allow health and safety officials to be able to focus more on improving outcomes rather than taking legal action, ultimately helping to prevent incidents from occurring in the future. Some have even suggested where appropriate to simply use the manslaughter charge written into the criminal code rather than going through health and safety legislation.
Although industrial manslaughter laws and charges have gone a long way in helping to hold employers criminally liable for workplace fatalities, it’s clear there is still work to be done to refine these laws and also pave the way for wider health and safety quality and reform. For example, in a review published in February 2024, the current Work Health and Safety Prosecutor for Queensland outlined the possibility of alternative verdict provisions alongside other amendments.
