National industrial manslaughter legislation would save lives
17th Oct 2019
Currently, Queensland and the ACT are the only state and territory to have enacted industrial manslaughter laws. In both jurisdictions, individuals face a maximum penalty of 20 years' imprisonment for an offence. And in the ACT, a court may also impose a fine of up to $320,000 on an individual. In Queensland, corporations face a maximum fine of $10 million, compared with $1.62 million in the ACT.
Encouragingly, the Victorian, WA and NT governments have each announced their intention to introduce new industrial manslaughter laws.
Regrettably, however, the NSW government announced last week that it has no intention of following these other states and territories.
As a workers’ compensation lawyer in national law firm, I see the lack of consistency across the states and territories and believe that there should be national standards to protect all workers. Workers should feel safe no matter which state or territory they live in.
The recent tragic death of a worker in Sydney’s Port Botany who was crushed between two shipping containers, the lack of consistency across jurisdictions, and the unwillingness of the NSW government to introduce industrial manslaughter laws all highlight the need for national reform.
The man who died at Port Botany is the fifth worker to have been killed in Sydney in the five weeks leading up to 25 September. Right now in NSW, there appear to be no real consequences for employers where there has been an incident resulting in a worker’s death. The penalties for existing offences are so pitiful that employers have no reason to care. It might be a different story if large fines could be imposed on corporations, individual directors and people managing and controlling workplaces faced 25 years gaol time, and work sites could be closed by unions.
While an incident that leads to a worker’s death falls into the worst category of workplace incidents, there are so many more which result in such significant workplace injuries that workers can never return to work. From what I have seen even smaller scale accidents don’t seem to grab SafeWork NSW's attention and employers consistently get away with not having the right processes in place. SafeWork NSW should be shutting down the site at Port Botany until better practices are in place to stop people from being killed at work.
There are also questions around whether organisations should be able to continue recovering the cost of related penalties under their insurance policies.
Under the current NSW law, prosecutors need to identify a grossly negligent individual and attribute their conduct to the company. At the end of the day, employers should be liable for gross negligence of their workers. They have a non-delegable duty of care for their workers and shouldn’t be sending a worker onsite without knowing it is safe. A strong national industrial manslaughter law may make employers think twice about whether they can afford to expose their workers to an unsafe worksite.
An earlier version of this article was published on Slater and Gordon's website here.
Jasmina Mackovic is a Slater and Gordon Practice Group Leader and a lead subject matter expert in NSW workers’ compensation law. She is an Accredited Specialist in Personal Injury Law and speaks Croatian, Serbian and English. Jasmina is a passionate advocate for people who have suffered injuries in their workplaces. She has helped injured workers, including many who have been seriously injured, access their statutory entitlements under the Work Cover Scheme, and recover damages under the common law system. Jasmina and her team have achieved significant compensation awards for their clients.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).