How you can be hit with Industrial Manslaughter charges
On hire recruitment agencies in Queensland are at risk of facing industrial manslaughter offences under the proposed Work Health and Safety and Other Legislation Amendment Bill 2017.
An inquiry following the tragic incident at Dreamworld in QLD last year, where four visitors lost their lives due to an accident on a theme park ride, and Eagle Farm where two construction workers were killed by a falling concrete slab, found that the consequences were not high enough for breaches of Work Health and Safety.
Flowers at Dreamworld in QLD - news.com.au
The Work Health and Safety and Other Legislation Amendment Bill 2017 was introduced to Parliament on 22nd August 2017. The Bill proposes to introduce an Industrial Manslaughter offence in the Work Health & Safety Act that has the potential to hold corporations and negligent individuals responsible for any workplace fatality.
The current fines of Work Health & Safety law in Queensland of up to $3 million for a corporation and $600k and/or 5 years in prison for officers (senior management) is already a huge deterrent to businesses. The proposed changes could see maximum fines of $10 million for a body corporate and 20 years imprisonment for an individual. RCSA has argued that this is a knee jerk reaction which will affect many smaller business operators.
A public consultation was held by the QLD Government. Feedback from various industries including tourism, construction, healthcare and mining, collated by the Australian Chamber of Commerce and Industry found all industry heads have agreed to the objection of the Bill.
The Queensland Law Society president Christine Smythe said there was no need for a new offence to be created.
"Currently offences both in the Workplace Health and Safety Act and in the Criminal Code more than sufficiently capture any wrongdoing that might occur in one of these circumstances," she said.
The RCSA Safety Working Group held a forum to discuss the issues and out of this, a submission was prepared by the RCSA and submitted to Government.
"On-hire firms may, by default, face Industrial Manslaughter where a serious injury or fatality of an on-hire worker results under the primary control of the host workplace. The on hire firm would be significantly impacted in the process of defending their position."
Amy Towers, founder of Risk Collective, who runs regular RCSA workshops on WHS, says this Bill does not take into account the size or nature of an on-hire business in allocating its responsibility and therefore, small businesses would be forced to close and left in irretrievable debt.
Managing Work Health & Safety Policies
Amy notes that often we think Work Health & Safety apply only to large scale businesses, when in fact each business, whether you are a two man band or an Adecco or Hays, must adhere to the same obligations.
Register now for Amy's online video workshop called 'Undressing Risk' to be held on 18 October 2017 where she will further address this issue.
Amy's advice to recruitment businesses is to avoid over-complicating policies and procedures and get to the core basics of "what's going to hurt your people" and focus on the safety practises around your prime risk first.
Don't get caught up in red tape. Amy recalls an example of a business who ran a full scale ergonomic assessment of their workplace while neglecting the bullying and mental health issues that were piling up. "You cannot do it all at once, so it's important to be focused and plan it through stages so you don't get overwhelmed." This is the second problem to avoid, the risk of putting it off altogether because it seems so hard to change everything.
It is important for senior management to be committed because building a culture of health and safety takes time and money and resources. It is vital to get all your people involved in the process to understand that this is a company wide initiative, not just a job for the Health and Safety officer.
You can register now for Amy's online video workshop called 'Undressing Risk' to be held on 18 October 2017.
* The ACT is the only other jurisdiction where industrial manslaughter is a specific offence, with a maximum penalty for an individual of 20 years’ jail and $1.25m for corporations. They can also be ordered to undertake community projects of up to $5m.
* NSW has penalties of up to $825,000 for a corporation under occupational health and safety laws. In 2003 parliament considered making industrial manslaughter an offence, but it didn’t become law.
* In Victoria it’s an offence where a person recklessly engages in conduct that may put another person in the workplace in danger of serious injury. The maximum penalty for individuals is five years’ jail or $920,250 for corporations.
* West Australian employer’s fail their duty of care if, by gross negligence, an employee dies or is seriously harmed. In March this year the Greens called for a change to the state’s criminal code that would hold employers responsible for the death of a worker.
South Australia, Tasmania and the Northern Territory. currently don’t have industrial manslaughter laws.
Reference: Australian Associated Press