We all know the importance of upholding WHS laws and regulations within the workplace, but the line between breaking WHS laws and being criminally liable just became a bit closer.
A recent case in Western Australia however, has brought to light for employers to be aware of and uphold all of the WHS laws and regulations for their state, if they don't want to be found criminally liable and in turn negligent - now is not the time for compliancy.
Industrial manslaughter laws are very real and from 1st July 2020 enforceable across most states. Although these new state based laws don't create any new obligations for employers, they certainly impose greater offences, subject to different legal tests.
Industrial manslaughter laws are different to WHS laws. An offence committed under WHS law is an organisation that has failed to provide a safe workplace, whereas Industrial manslaughter laws come into effect when such a failure leads to a fatality. Each state has their own individual laws and specifically for SME's, where a large percentage of their organisations are owner operated, its vital that employers and organisations as a whole have a clear understanding of these laws and obligations and the effect on their businesses.
For the tragic case in Western Australia, as reported on the ABC and HRM Online ''MT Sheds has become the first employer to be sentenced to jail (a 26 month sentence), for a workplace health and safety incident under Western Australia's workplace health and safety laws. He was convicted after pleading guilty to a charge of gross negligence, that resulted in the death of a 25 year old worker, and seriously injured another in March 2020".
Worksafe WA commissioner Darren Kavanagh told the ABC that this penalty should act as a ''significant deterrent'' and be a ''moment of awakening'' for employers who don't prioritise health and safety.
At this point in time, five Australian states and territories have passed industrial manslaughter legislation (ACT, QLD, NT, WA and VIC), a bill was introduced in South Australia parliament in 2019, but is yet to be passed. Tasmania is the only state not to have legislation on the matter.
Sue Bottrell, a WHS lawyer states ''as fines and jail times go up in one state it will absolutely have an influence on how other states react''.
Its important for all employers to be aware, and armed with knowledge as these cases aren't isolated to just the construction industry, and any workplace fatality will now be examined under the same legislation.
Below are some key takeaways from Sue Bottrell:
How can you protect your business:
Do a risk assessment to determine if there is a serious danger posed to workers in particular situations. Ensure you have processes in place to mitigate that risk.
This legislation is targeted at people who own and run companies, not frontline workers. However, everyone has a duty of care to ensure their workplaces are safe for all.
Each state regulator offers support and information for small businesses , so that's a good place to start your education, they also offer free advice. For example in Victoria there's a resource called OHS Essentials Program offered by WorkSafe Victoria.
There are also safety professionals through the Australian Institute of Health and Safety who are available to offer advice. You don't need to hire someone fulltime, you can get help from a consultant.
When you see a lawyer, make sure they have a strong background in health and safety, and aren't just a commercial lawyer. It's a technical field she says and the person representing you should have specialist skills.