Industrial Manslaughter - Why it is unlikely to reduce fatalities.

The Australian state of Victoria has undertaken to amend their OHS Act to provide for the criminal offence of industrial manslaughter. This offence attaches criminal responsibility to negligent conduct by the employer or an officer of the employer that causes death to a worker.

The state of Queensland passed industrial manslaughter laws late last year. This was apparently in response to the deaths of four people at the Dreamworld theme park on the Gold Coast in October 2016, and the deaths of two workers at the Eagle Farm racecourse earlier that year.

Interestingly, the Queensland laws don’t apply to the mining sector yet, where there is arguably a higher risk, nor do they apply to any person other than an employee, which is a little odd, given the Dreamworld victims were visitors to the park. There is a very strong chance the laws will be applied to the Queensland mining industry. There have been 7 deaths on Queensland mines or quarries in the last 18 months and subsequently, loud calls for industrial manslaughter to apply to mining.  

In a first for Queensland, the work health and safety prosecutor has commenced an industrial manslaughter proceedings against Brisbane Auto Recycling Pty Ltd and its two company directors, for engaging in reckless conduct that resulted in the death of a worker. The proceedings are yet to take place.

The Australian Capital Territory became the first jurisdiction in Australia to introduce the offence of industrial manslaughter in 2004. In 14 years, not one prosecution has proceeded under that legislation. The lack of prosecutions, may be in part attributable to the fact that all Commonwealth public servants were exempted from the provisions.

The provisions in the Australian Capital Territory have “teeth”. Prosecutors do not have to prove negligence by an act or an omission. A company can be convicted of industrial manslaughter for neglect that’s attributable to a group of people i.e. a culture that was directed, encouraged, tolerated or led to the non-compliance that resulted in the death. Further, any manager who has presided over that culture can be sentenced to a prison term.

In contrast, the Queensland legislation, says nothing about penalising a deficient culture, nor anything about aggregating responsibility. If the Victorian legislation follows suit, it will be silent on these issues as well.

I for one, find it very difficult to believe that this offence will have an effect on workplace deaths. In particular, I just cannot see it in the large scale, high risk, heavy industry contexts in which I predominantly work e.g. large-scale mining, infrastructure construction and petrochemical. Some of the reasons for my scepticism about the laws having no effect on the death toll in these types of industries include:

• The difficulty of proving the level of negligence required, where the organisations involved have reasonably robust systems of work, training, risk management, inspection, maintenance, consultation and supervision. In addition to this, there are enhanced technologies and protocols of regular communication and engagement with the workforce. The difficulty in proving negligence is compounded by the fact that these robust systems, whether effective or not, better enable the company and its officers to demonstrate reasonable diligence.
• Incidents involving workplace deaths in large scale mining, construction and petrochemical are extremely complex energy interactions involving a multitude of factors. There are always people, plant and place factors interacting in the immediate circumstances of the incident and factors that predispose these immediate factors that exist in latency from some time prior to the incident. These incidents are just not as cut and dry as the cases of gross negligence you sometimes see in less complex workplaces, again making it very difficult to prove gross negligence of an individual or small group of individuals.             
• There has always been the criminal code, where individuals can and have been charged with actual manslaughter for a workplace death. Case in point, a person was charged by a police officer with manslaughter for the deaths of workers at Eagle Farm racecourse. If you did not already know you can be charged with actual manslaughter for a workplace death and you are an officer of a company, you should have. Has this been a deterrent so far?
• Unless jail time is made mandatory, the likelihood of a court sending an officer of a big company to jail is very low. Virtually no corporate manager of a large company would have a criminal record and many boast a distinguished history of public and community service. There would also be a multitude of character witnesses to appear on their behalf. In addition, a successful prosecution would mean the individuals may never work again, which would weigh heavily into any decision.
• There is the simple fact that, plenty of money and support, means a great defence, but in contrast to a typical WHS prosecution, it is the prosecution that is up against it in an industrial manslaughter case.
• Industrial manslaughter may even be to the detriment of safety. Currently, when there is a workplace death or other critical incident (usually a notifiable incident), within a large organisation, the organisation will typically “lawyer up”. They will seek Legal Professional Privilege (LPP) over the investigation and as much other information as they can. It certainly has its merits for protecting the company and its officers. Most investigations under LPP are handled poorly (a topic for another time). Suffice to say, anyone who has been involved in an investigation under LPP, can tell you that it can seriously hamper true learning from the incident; stifle communication with the workforce, drive under reporting and sometimes create a state of mistrust. If this occurs, safety suffers. Now imagine there is industrial manslaughter on the table.

The sort of negligence and wilfully reckless acts or omissions that provide a reasonable chance of prosecution (to justify the expense to taxpayers), is indeed, quite rare in large heavy industry organisations. I'm not saying it does not happen, take the Pike River mine disaster in New Zealand for example. However, it is more likely to exist in small-medium business or industries like agriculture, forestry, fishing, low tech manufacturing, or smaller scale construction. In these workplaces, you are more likely to see poor or absent safety systems, a low level of safety culture, less operating discipline or a lack of resources / capability applied to risk assessment and control.

We already have had the criminal offence of manslaughter (in existing criminal codes) used in cases of gross negligence causing workplace death. To date it has only been used against smaller, less complex workplaces e.g. the tragedy at Eagle Farm Racecourse. This involved a small-medium lower tier construction company. Two workers were killed, when concrete panels, not properly braced, fell on them. The boss of the job knew the situation was dangerous and was charged with manslaughter, under the criminal code. Interestingly, this person was arrested and charged by the same police officer who attended the scene of the incident. The arrest happened as the individual was attempting to board an international flight and while the safety regulator were still making up their minds about prosecution. The construction company was eventually prosecuted and fined $AUD 405K under OHS laws, some say it appeared as if the manslaughter charge by police jolted the regulator to action.

The first case of industrial manslaughter being brought in Queensland is also against a smaller business, a vehicle wrecker. From what I have read and heard about this case, it involves a workplace with apparently void of systems of work, basic risk controls and leadership. The specific risk and controls were very well known and legislated for. 

The Dreamworld rapid river ride disaster, prompted public outrage; a coroner’s inquest and in no small part contributed to industrial manslaughter laws being enacted in Queensland. Four members of the public were killed, including children. The incident revealed gross negligence, in terms of poorly implemented systems; a lack of training; poor supervision; and very poor emergency response procedures / practice. These failings on the part of the employer were shockingly obvious after the fact. A deeper thinker about risk, can see other things that are a good example of the contrast between industries. It is clear to me that the incident also demonstrated that the amusement industry had absolutely no clue; or simply did not care about safety in design; redundancy in a process or basic process safety controls and automation. These are all controls that have been common place for many years in minerals or chemicals processing, applied to equipment with far less risk to human life, remember, the rapid river ride was essentially a system of conveyance for people, including children. 

Can our legislators do better than this?

Could the resources used to come up with industrial manslaughter been put to better use? There have been numerous studies by experts (though many of them have not seen the working end of a risk); and many tripartite meetings (though attended by the same people who have presided over the high death rate). There are also the costs involved with enacting and prosecuting the legislation i.e. prosecutors, judges, correctional staff and facility (if people are jailed) and defence costs. All are costs to taxpayers and industry, with a doubtful prospect of results.

I would urge regulators to look at the incidents and focus on being more practical about prevention and mitigation in the first instance, rather than a slim chance of punishing the guilty and keeping the innocent nervous.

The same energy interactions are producing fatal incidents with great regularity in Australia and all over the world, with little variation. We understand how the damaging energy is imparted and why the controls fail to prevent or mitigate the damage. We also know the best practices to reduce these incidents, particularly if we get smart, think outside the box and look across industries, not just within our smallish pockets of industry. Legislate, monitor and enforce that!

An example of not thinking outside your own sandpit, relates to the Dreamworld disaster. people were being transported on a conveyor system. Conveying people has been occurring for many years in underground mining, albeit in just a few countries now. At the ILO in Geneva, when drafting global codes of practice for safety in mining (the basis of law in many countries), many of us worked very hard to ensure regulators around the world, enshrined and enforced specific controls for the conveyance of people, making it difficult to get the practice approved, but not impossible. This included design review for approval, as well as mandated automated process controls and multiple redundant safeguards.  In contrast, the WHS legislation in Australia required numerous inspections of amusement devices (obviously looking, but only seeing through a narrow lens), but completely failed to enforce basic hard controls, for equipment carrying such precious cargo. In the wake of the disaster and subsequent inquiries, amusement parks now have 6 months (within which they continue to operate) to make a safety case. Their safety case is to essentially outline a safety management system, inspection regimes and maintenance, to obtain a licence. Oh and yes, there is industrial manslaughter now. What did Einstein say about doing the same things again and again and expecting different outcomes?      

Our legislation is just not focussed and specific enough on critical controls for the fatal risks, that are over-represented in the incident data. I understand you cannot legislate everything or prescribe controls down to every specific detail. But, risk based (or Roben’s style) legislation is fine, but let’s face it, risk assessment has devolved in many workplaces (perhaps never evolved in others). We have become too broad brush, perfunctory and there is a real tendency to kick risk assessment further down the chain to the point where there is not the information, skills, knowledge and resources to do it well.

There are long clauses in legislation that are far to grey i.e. specifying management plans, management systems and their required content; or specifying considerations for a risk assessment, without making any specification about the mandatory controls. This creates a mass of paper at the work front, but does it do much about tangible risk. It may be a reason that many of those small to medium businesses struggle with the cost of compliance, particularly if they are trying to win work from bigger organisations. Perhaps the regulators should look back at their successes, like work in a confined space. After a string of fatalities, they got prescriptive about the few critical controls, coupled with a strong advisory and enforcement regime, that actually did reduce deaths in confined spaces. The workplace is not getting any simpler, so our legislation and regulators need to be more about design and engineering controls.

Of course, more resources to the regulator would help, but in my view, the outcome must be more than just more inspectors / inspection, it should be about upskilling and brfining in fres expertise. Currently, inspectors spend far to much time on hazard hunts, that rarely target the verification of specific controls. The effectiveness of this approach is self-evident. They truly need to improve their expertise at encouraging and advising for improved safety, that would be money well spent.   

I can see how governments, unions etc. will be patting themselves on the back for these laws and may truly believe they will make a big difference to reduce workplace fatalities. It will be interesting to see if they do, and how that will be measured. There is virtually no evidence to suggest that it will work, but there is always hope. Personally, I think our legislators, need to be designing for the future, rather than being focussed on blaming for the past. 

Before you go

1. I have no doubt there will be a lot of people out there, using a bit of shock doctrine to get people nervous about industrial manslaughter to drum up more business. lawyers, hungry for work, after a very slow period; and safety consultants selling you management systems / behavioural programs that will “magically make you compliant”. Many of the people out there selling, have never actually had to manage the hazards themselves, investigated a workplace fatality, or seen the working end of the legislation after a critical incident, so be careful who you listen to.
2. In essence, unless Newton, Einstein, Galileo etc. were all wrong, the way to manage hazards and their associated risks, remains the same.
3. Please share your own thoughts on this matter, it has been the subject of much debate and it would be great to hear some other points of view, or any evidence of this working elsewhere in the world, that I've not seen.