An independent review of national workplace safety laws is expected to recommend a new offence of industrial manslaughter to make employers liable for gross negligence of their workers.
Marie Boland, former executive director of SafeWork South Australia, who led the review of national work health and safety laws, believes the new offence is needed to address community concerns and limitations in existing criminal manslaughter laws.
Under existing laws, a corporation can commit the crime of negligent manslaughter. But the review found that many lawyers have identified big hurdles to getting a conviction. Prosecutors need to identify a grossly negligent individual who embodies the company and whose conduct can be attributed to the corporation.
The Sydney Morning Herald and The Age understand Ms Boland has recommended there should be a separate industrial manslaughter offence for workplace deaths where there has been a gross deviation from a reasonable standard of care.
It is understood that Ms Boland has recommended that someone who holds a duty of care should be liable if they are grossly negligent in exposing an individual to a risk of serious harm or death. She is also expected to recommend that people or organisations should no longer be able to recover the cost of related penalties under insurance.
The federal government has expressed opposition to the introduction of industrial manslaughter laws and industry groups have argued that existing criminal laws against manslaughter under state crimes Acts are sufficient.
The ACT and Queensland have already introduced industrial manslaughter laws and the Labor Party has pledged to introduce them in Victoria and in NSW, if successful at the March state election.
NSW ALP industrial relations spokesman Adam Searle said he would welcome a recommendation for the introduction of industrial manslaughter laws nationally. Employers in NSW would face up to 25 years in jail for workplace deaths under Labor proposals. Under existing laws, companies only face fines.
“NSW has the highest number of workplace deaths in Australia and we need to take particularly firm action to tackle the problem,” he said.
It is understood the review will also called for tighter regulations for amusement parks following the Dreamworld deaths. This would include better recording of infringements and operator training.
Improvements to the quality of asbestos registers and a review of what it means to be a competent person for working with asbestos is also expected to be recommended.
Tony Hampton from Victoria said he would like to see industrial manslaughter laws introduced as a deterrent because he did not believe companies were taking their responsibility for ensuring workplace safety seriously enough. Mr Hampton’s son Jarrod Hampton died on his second day of pearl diving at the age of 22 in 2012. The company he worked for was fined $60,000 for failing to provide a safe working environment.
“I don’t feel employers take their responsibilities seriously enough because there is no serious penalties,” he said.
NSW Minister for Innovation and Better Regulation Matt Kean said the independent review made 34 recommendations proposing changes to the workplace health and safety laws developed by Safe Work Australia in consultation with the Commonwealth, states and territories.
“A number of these recommendations will be subject to a regulatory impact statement, which will be issued by the Commonwealth for consultation,” Mr Kean said.
“Workplace deaths may constitute manslaughter under NSW law and the report’s recommendations will be considered in that context.”
ACTU Assistant Secretary Liam O’Brien said industrial manslaughter laws are critical to reducing the number of people who die at work or have to carry workplace injuries for the rest of their lives.
Jobs and Industrial Relations Minister Kelly O’Dwyer declined to comment before the review’s public release.