On 23 October 2017, industrial manslaughter provisions in the Work Health and Safety Act 2011 (WHS Act), Electrical Safety Act 2002 (ES Act), and Safety in Recreational Water Activities Act 2011 (SRWA Act) commenced.
These provisions make it an offence for a person conducting a business or undertaking (PCBU), or a senior officer, to negligently cause the death of a worker. In particular, the offence applies 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 cause 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).
Where a PCBU, or senior officer, commits industrial manslaughter, a maximum penalty of 20 years imprisonment for an individual, or $10M for a body corporate, applies.
For the purposes of the industrial manslaughter offence, a PCBU has the same meaning as applies under section 5 of the WHS Act or section 21 of the ES Act. For example, a PCBU can be a sole trader, a partnership, company, unincorporated association or government department.
A senior officer is:
- an executive officer of a corporation (i.e. a person who is concerned with, or takes part in, the corporation’s management); or
- for a non-corporation, the holder of an executive position who makes, or takes part in making, decisions affecting all, or a substantial part, of a PCBU’s functions.
The use of the term ‘senior officer’ for the industrial manslaughter offence is intended to capture individuals of the highest levels in an organisation (those who can create and influence safety management and culture at their workplace). The rationale for capturing these higher level officers is to ensure health and safety is managed as a cultural priority within organisations and to guarantee that safety standards are managed and supported from the top down.
Examples of senior officers may include:
- a director or secretary of a corporation
- Chief Executive Officers
- Chief Financial Officers or Chief Operations Officers
- General Counsel
- General Managers
- officeholders in a unincorporated association (i.e. a club president).
In determining whether you are a senior officer for the purposes of the industrial manslaughter offence, you should have regard to:
- your position in the company (i.e. are you in senior management?)
- your ability to take part in decisions which affect the company (i.e. can you decide how money will be spent or the strategic direction the company will take?)
- your ability to influence how resources are used and what procedures are necessary (i.e. do you have the ability to make decisions about how work health and safety will be managed?)
- your ability to make decisions (i.e. is your decision making subject to a further approval process or are you the final decision-maker?)
- your reporting structure (i.e. do you report directly to a board?)
- what is the extent of your domain? (i.e. do you head the largest division and is that division a core part of the business?)
- who are your direct reports (i.e. do you have oversight of high level general managers?).
These and other similar factors would be part of the consideration for determining whether you are a senior officer.
A person is not a senior officer if they simply provide advice for the consideration of decision-makers or are only involved in the administration of a business process. For example, a manager or supervisor in an operational area of the business (i.e. a line manager) will not be a senior officer as the manager or supervisor administers the decisions of more senior management and do not make key decisions on how the business is managed.
The existing standard for criminal negligence in Queensland applies to the industrial manslaughter offences. This means that a PCBU or senior officer will be found negligent where their conduct departs from the standard of care expected to avoid danger to life, health and safety, and the conduct substantially contributed to the fatality.
In applying this standard, it is intended that corporate and senior officer criminal responsibility will be extended to cases where a corporation's unwritten rules, policies, work practices or conduct tacitly authorises non-compliance, or fails to create a culture of compliance within the workplace consistent with its responsibilities and duties of care.
No. A volunteer senior officer cannot be prosecuted for industrial manslaughter. This immunity from prosecution is consistent with the current immunity for volunteer officers under the WHS Act, ES Act and SRWA Act as they apply to the performance of 'officer' duties. This exemption is designed to ensure that voluntary participation at the senior officer level is not discouraged.
The current exclusions for unincorporated associations under section 34(2) of the WHS Act, section 40F(2) of the ES Act, and section 25(2) of the SRWA Act also apply to the industrial manslaughter offences. This means that an unincorporated association does not commit an offence for failure to comply with a duty or obligation, including industrial manslaughter. Instead, the liability sits with senior officers of unincorporated associations, who continue to be held liable. This applies in all circumstances except those where senior officers of unincorporated associations are volunteers.
Individuals and PCBUs have always been able to be prosecuted for manslaughter under the Queensland Criminal Code. However, there are limitations with establishing corporate criminal responsibility for manslaughter under the Criminal Code. In particular, successful prosecution of large corporations is difficult under the Criminal Code on account of the need to identify an individual director or employee as the directing mind and will of the corporation. Proof of fault by a top-level manager or director needs to be established, which can be challenging in the case of large corporations with elaborate corporate structures (e.g. a corporation with a Board of Managers). This ultimately means that manslaughter prosecutions under the Criminal Code are only successful against small businesses and that prosecutions against large corporations are unlikely to succeed.
Establishing industrial manslaughter as a separate offence under safety legislation ensures that prosecutions can extend to the highest levels of a corporation. It is also an important reminder to senior management to instill a positive health and safety culture in their workplace.
Inserting the offence in the WHS Act, ES Act and SRWA Act enables the conduct of employees, agents and officers to be attributed to the corporation. For example, directions from senior leadership in a PCBU to cut corners can lead to an acceptance and culture of poor safety standards.
A PCBU or senior officer could potentially be charged with either manslaughter under section 303 of the Criminal Code or industrial manslaughter under the WHS Act, ES Act, or SRWA Act.
The Queensland Police progress manslaughter charges under the Criminal Code to the Director of Public Prosecutions for a decision on whether to prosecute those cases.
As the industrial manslaughter offence is an indictable offence, the Director of Public Prosecutions is responsible for deciding whether to prosecute these cases. This is consistent with the approach taken for manslaughter prosecutions under the Criminal Code and the prosecution of Category 1 offences under the WHS Act, ES Act and SRWA Act.
All of the defences in Chapter 5 of the Queensland Criminal Code can be used to defend a charge of industrial manslaughter, except for the defence in section 23, which relates to the defence of an individual’s act or omission being an 'accident'.
Examples of defences that can be used include ignorance of the law (section 22), mistake of fact (section 24), extraordinary emergencies (section 25) or insanity (section 27).