Industrial Manslaughter, Construction Safety and You

Here's some excellent advice: love like there's no tomorrow, dance like no one is watching, and treat every construction safety decision like it will be used in evidence. With the introduction of Industrial Manslaughter laws (in every jurisdiction other than Tasmania), it's never been easier to find yourself in trouble - perhaps even behind bars. Construction safety is a serious business, and we're here to help. Today, we'd like to clarify the topic and show you how to stay out of jail!

Since we will speak about some legal issues, I also need to clarify something. It's time for the legal-speak disclaimer and clarification statement:

This article, and all our articles, are not intended to be received as advice regarding any individual situation and should not be relied upon as such. The information contained herein uses sources we believe are reliable, but we make no representation or warranty as to accuracy. Occupational Safety Solutions shall also have no obligation to update this article and shall have no liability to you or any other party arising out of this article or any matter contained herein. Any statements concerning legal matters are based solely on our experience as risk management resource creators and are not to be relied upon as legal advice, for which you should consult your own professional advisors.

With that legality clarified, I want to recognise that some people see nothing wrong with manslaughter. They love it when men laugh.

Now that's out of my system, let's get into this serious topic. We will ask and answer:

1. What is Industrial Manslaughter?
2. How does this law impact construction safety?
3. What are the penalties?
4. What is imputation, and why does it matter?
5. How's your 'state of mind'?
6. How might you prove yourself innocent?
7. What is a wise 'get'?

What is Industrial Manslaughter?

The crime of ordinary 'manslaughter' is typically defined as the unlawful killing of another person without malice or in circumstances that otherwise don't amount to murder. Industrial manslaughter is when a corporation or its workers cause this type of unlawful killing within the scope of their work.

It is classified as a category one offence, and to be found guilty, corporations and individuals must be proven guilty of criminal negligence or recklessness.

How does Industrial Manslaughter impact Construction Safety?

Now that Industrial Manslaughter is a part of Australia's construction safety legislation, there are new concerns to address and responses to make.

This offence (or an equivalent of it) now exists or is in process in all states and territories - except Tasmania. The Industrial Manslaughter offence:

1. Expands the events (and omission of events) that constitute manslaughter,
2. Provides very significant penalties (including fines and imprisonment),
3. Broadens the reach of who is accountable, and
4. It makes it easier to prove guilt.

How Bad Are the Penalties?

The legislation varies depending on your state or territory. A reasonable summary, rounding the figures for the sake of understanding, is as follows:

• Australian Capital Territory has fines of up to $16.5 million and/or 20 years imprisonment.
• New South Wales (from 7/2024) will apply penalties up to $10 million and/or ten years imprisonment.
• Western Australia has a maximum of $10 million and 20 years imprisonment.
• Northern Territory use fines of up to $10 million and a maximum penalty of imprisonment for life.
• South Australia is preparing for maximum fines of $15 million and/or 20 years imprisonment.
• Queensland legislation applies penalties of up to $10 million and 20 years imprisonment.
• Victoria uses a maximum fine of $16.5 million and a maximum of 25 years imprisonment
• Tasmania – Does not have, nor do they intend to introduce Industrial manslaughter laws.

There is variation between jurisdictions, but we'll drill down on New South Wales' incoming legislation as an example for clarity and understanding.

As a result of their amendments, both fines and sentences have typically more than doubled. For offences involving gross negligence or reckless conduct, the penalties are as follows (again, the numbers are rounded for ease of reading):

• Individual PCBUs and their officers: $800K to $2 million and/or ten years imprisonment.
• Other officers and individuals: $400K to $1 million and/or ten years' imprisonment.
• Bodies corporate: $4 million to $10 million.

The laws' scope (or reach) has expanded, and the liabilities (ways of being found guilty) have increased. If these laws were a net, they now have smaller gaps, so behaviours that used to slip through no longer do, AND the net is much wider, catching more people than ever before.

Construction Safety Laws and the Power of Imputation

We should consider the legal concept of 'imputation' to appreciate the changes. I will gut its fullness, but for ease of understanding, here are the headlines.

In nations where protective legal principles and judicial fairness exist, a crime is typically only punishable when:

1. An action or inaction has been enacted as a crime.
2. That law has been reasonably posted, declared or made known.
3. A person has performed the prohibited action or inaction (i.e. actus reus, or an action of guilt).
4. That person had the mental capacity and intention to do so (i.e. mens rea).
5. That person is liable, or legally answerable, to the charge.

Imputing Knowledge and Liability

A critical aspect of mental capacity and intention (mens rea) is the alleged offender's knowledge.

This legal concept of 'imputation' is significant in regulating construction safety. Imputing is the act of ascribing or attributing a trait or blame. For example, politicians are often imputed with the characteristic of dishonesty.

Similarly, the court will impute knowledge and liability to you if you are a director or supervisor - and they can now do this due to the amendments.

Almost always, individual directors and corporations are imputed as liable to a law:

1. When living or operating within a law's jurisdiction (i.e. within a particular state or territory).
2. When engaged in those activities (e.g. construction).
3. When employing others to fulfil such activities.

Stripping Away the Defences

Previously, manslaughter (and other charges) have been fought based on certain defences, with these three being common:

1. Ignorance: Supervisors and directors claimed they were unaware of a worker's actions (e.g. "I didn't know Strop was using the blowtorch in the lunchroom").
2. Non-compliance: Supervisors and directors claimed the worker acted outside the parameters of the work they were hired to do (e.g. "Find me anywhere in his job description that I told him to use a blowtorch to prepare his lunch.").
3. Ineligibility: Since it is a non-human entity, the corporation cannot exercise mental capacity or intent ('mens rea') and, therefore, is not liable to the law.

These defences worked. They worked so well that legislators felt the need to make changes. As a result, these amended construction safety laws almost completely remove the 'Ignorance', 'Non-Compliance' and 'Ineligibility' defences.

How's Your Construction Safety Mind Set?

Workplace culture is now a key focus of investigations and evidence. With these laws in effect, the workplace culture you create and the one you allow become very important.

The Industrial Manslaughter offence can become your nightmare. Almost any action or inaction (direct or indirect) that can be seen to endorse or empower unsafe behaviours could land you in a legislative, financial or even imprisonment nightmare.

So how do they prove it? How do they show that your actions or inaction endorse or empower unsafe behaviours? In addition to the obvious, they look at your 'state of mind'.

Apparent things include:

• Failing to buy necessary equipment.
• Not having a construction safety system.
• Failing to use it.
• Explicitly telling Strop to cook his lunch with a blowtorch.

Assessing the organisation's, director's and supervisor's 'state of mind' is a little more complex.

If it can be shown that the directors, authorised persons or corporate culture demonstrated a 'state of mind' that is reckless or negligent, those persons - and the organisation - may be guilty of the offence. State of mind can be demonstrated by:

1. Acting intentionally, knowingly or recklessly,
2. Permitting others to act by direction or implication, or
3. Allowing a culture that leads to the carrying out of the conduct.

So, what's the takeaway? As a director or authorised person:

1. Don't be reckless,
2. Don't authorise someone else to be reckless,
3. Don't imply in any way that someone should be reckless and
4. Ensure nothing in your culture contributes to reckless behaviour.

The bottom line is this:

You must not approve or empower a reckless or negligent culture!

How Do You Prove Yourself Innocent?

We've kept a reasonably high-altitude perspective in this article, and we will stay that way because the specifics of construction safety vary significantly between entities, workplaces and construction projects. From a big-picture perspective, however, here are some things you should think VERY seriously about:

1. Do you have a thorough and professional construction safety management system? If you don't exercise this due diligence before a fatal accident, you might find yourself in prison.
2. Do your managers and supervisors use it? The exposure level for mid-level managers has never been so high. Managers and supervisors should now seek use and document their use like never before.
3. Do your workers use it? Do you enforce compliance (as an organisation and as an individual)? Are your construction safety management systems followed? Do you check? Do you enforce compliance? Do you record these efforts? Those old Monopoly 'Get out of jail free' cards won't save you if you don't.

Remember, the state of mind of your people and organisation must not approve or empower a reckless or negligent culture!

Prison Avoidance and Construction Safety Begins with 'The Get'

Step one is to have a system, so if you still need to do that, we recommend it.

Both the OH&S and WHS Management Systems equip you to comply with the relevant AS/NZS ISO 45001:2018 or AS/NZS 4801:2001 standards and the Model Work Health and Safety (WHS) Act and Model WHS Regulations.

The OH&S Management System comes in seven (7) parts - conveniently structured like the ISO Annex SL, and the complete list of contents can be viewed here.

The Work Health and Safety (WHS) Management System is in five (5) parts, and the contents can be seen here.

Industry-specific OH&S and WHS Management Systems are also available.

These systems are designed to be easy to use:

1. We consistently hear back that our convenience objective has been fulfilled,
2. The customisable Microsoft Word templates are a breeze,
3. An Implementation and Management Guide is included, and
4. We provide telephone and/or email support.

If you implement and manage these systems responsibly, and you are legally compliant as a result, these resources can help you stay out of prison - but only 'IF' you use them! Please understand: safety and liability can no longer be outsourced and each PCBU is held responsible for their own operations and the risks associated with their business. Yes, purchasing our safety management systems will save you hundreds, perhaps even thousands of hours, in research and development - but you need to use it, and you need to use it correctly.

Do this... and these systems will help you avoid prison!

Seriously, This is a Very Wise Investment!

If you're a regular reader, you know I don't do manipulation or hard sells. But I'm going to lay out some numbers that are genuine and fair.

Let's make some quick cost comparisons:

• $ 990 is the usual cost of a WHS MANAGEMENT SYSTEM.
• $ 1,190 is the usual cost of an OH&S MANAGEMENT SYSTEM.
• $ 2,000 is the cost of 10 hours of a paralegal's time.
• $ 2,500 is the fee for 10 hours with a junior lawyer (second chair).
• $ 5,500 should get you 10 hours with a senior lawyer or associate.
• $ 20,000 might buy you 60 hours of their combined time for a hearing (before other fees).
• $ 10,000,000 could be the corporate fine (and you can't insure for this).
• Impossible to calculate is the pain and cost for the person you lose, the cost of the public relations damage AND the price you pay if you end up in prison.

That's not manipulation. That's reality!

The bonus news is that the usual cost has been reduced, AND if you purchase in December 2023, you can take a further 10% off due to our end-of-year specials.

With these discounts - and if you use the December promo code:

• The OH&S MANAGEMENT SYSTEM is $891 (not $1,190) saving you $299.
• The WHS MANAGEMENT SYSTEM is $801 (not $990), saving you $189.

This is a good deal and a wise investment. You could save a life, save a corporate fine and save yourself and your people from prison.

The December discount is a 10% discount on ONLINE PURCHASES. To enjoy the benefits, enter discount code DEC23 at the checkout.

We've explained the changes, the laws and the risks. We've looked at the old legal defences that likely won't work anymore, and we've talked about how to prove yourself innocent and stay out of jail (without offering legal advice). Now it's your turn. Call 1800 304 336, and we'll walk it through with you, or go straight to the management systems for WHS and OH&S. Whatever you do, don't put it off. This is happening. Please don't believe it can't happen to you.

Footnotes:

1. Legal fees calculated using rates accessed here and accrued at $4,000 ($200x20), plus + $5,000 ($250 x 20) plus $11,000 ($550 x 20)