The wave of industrial manslaughter offence reforms currently sweeping Australia present organisations with a number of important challenges, and OHS professionals need to consider a number of factors in order to minimise associated risks, according to Clyde & Co.
For many years in Australia, the appetite for industrial manslaughter offences on the statute books has waxed and waned, said Alena Titterton, a partner in Clyde & Co’s regulation and investigation practice, specialising in health, safety and security.
But the 2016 events in Queensland that resulted in multiple fatalities at Eagle Farm and Dreamworld provided additional impetus for such reforms.
Titterton also observed that the Queensland Government also announced a Best Practice Review of Workplace Health and Safety Queensland that included recommendations for industrial manslaughter provisions in the wake of those incidents.
Developments in the industrial manslaughter space are also posing a further threat to the harmonisation of health and safety laws across Australia, which has proceeded with limited success since 2012, according to Titterton, who recently provided a legal update on the issue together with Michael Tooma, managing partner of Clyde & Co Australia.
“Notwithstanding commitments to harmonised WHS laws, early signs point to marked jurisdictional differences as the industrial manslaughter offences are introduced around the country,” she said.
“It appears they may apply different legal tests (negligence vs recklessness), apply to different categories of individuals (‘senior officer’ vs ‘officer’) and different penalties ($10 million vs $16 million) depending on the state or territory in which the fatality takes place.
“While we can debate the merits of industrial manslaughter offences, it seems that the tide is in their favour and organisations need to be ready for them.
“What we are seeing practically in the event of workplace fatalities, is that the police and safety regulators are both responding to and looking at potential charges under both general criminal laws and work health and safety laws,” said Titterton, who explained that these require different legal strategies.
While in the past, the focus of safety regulators was on the systematic failures of an organisation in the context of such incidents, she said there is now a trend towards charging individuals at all levels as well as the organisations in the event of a fatality.
Given the increasingly significant legal ramifications for organisations and individuals arising in the context of Australian workplace fatalities, Titterton explained that incident response and investigation policies and protocols need to be reviewed to determine whether they are sufficient for fatal incident response.
“There may be a conflict between the various interests of individuals and organisations given that the microscope is now on both the conduct of individuals and the conduct of organisations,” she said.
“It may be that a more sophisticated incident response is required with separate legal representation for the corporate entities and individuals involved at multiple levels.
“Organisations may need to consider establishing a panel of different law firms to be immediately available to represent various different interests in the event of a fatal workplace incident.”