The NT Industrial manslaughter reforms: what directors and managers need to know and manage

In February 2020, George Roussos presented at Australian Institute of Health and Safety Darwin conference – “NT Industrial Manslaughter” – on the topic of the new Northern Territory Industrial manslaughter reforms: what directors and managers need to know and manage?

The following sets out information in George’s powerpoint slides

WHSA offences

31 Reckless conduct – Category 1

the person has a health and safety duty

without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

the person is reckless as to the risk to an individual of death or serious injury or illness.

32 Failure to comply with health and safety duty – Category 2

the person has a health and safety duty; and

the person fails to comply with that duty; and

the failure exposes an individual to a risk of death or serious injury or illness.

33 Failure to comply with health and safety duty – Category 3

the person has a health and safety

the person fails to comply with that duty.

NT Review Work Health and Safety

‘In announcing the Best Practice Review, the government is committed to examining whether any further measures could be undertaken to discourage unsafe work practices. This includes consideration of: the merit of introducing a new offence of gross negligence causing death

‘One of the arguments for the introduction of a specific industrial manslaughter offence is that the current laws are not sufficiently ‘criminal’ in nature.’

New “industrial manslaughter provision”

The NT introduced its new “industrial manslaughter” law in Parliament on 19 Sep 19.

The proposed law was referred to the Parliaments Economic Policy Scrutiny Committee which held a Public Briefing on 24 Sep 19. The called for submissions by 8 Oct 19.

The law passed the NT Parliament in Nov 19. It received assent on 10 Dec 19 and commenced 1 Feb 20.

NT Review Work Health and Safety

Manslaughter – Criminal Code Act NT

A person can be charged with manslaughter and prosecuted under the Criminal Code for a work related death. Section 160 Criminal Code Act (NT) a person is guilty of the offence of manslaughter if:

(a) the person engages in conduct; and

(b) that conduct causes the death of another person; and

Section 161, a person who is guilty of the offence of manslaughter is liable to imprisonment for life.

Division 6 Industrial manslaughter (NT)

S34B (1) A person commits the offence of industrial manslaughter if:

(a) the person has a health and safety duty; and

(b) the person is a PCBU or an officer of a PCBU; and

(d) the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed; and

(e) the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.

Organisations, Officers

(b) the person is a PCBU or an officer of a PCBU (strict liability)

S4 WHSA Definitions

officer means:

(a) an officer within the meaning of section 9 of the Corporations Act 2001 (Cth) other than a partner in a partnership; or

(b) an officer of the Crown within the meaning of section 247; or

other than an elected member of a local government council acting in that capacity.

WHSA ‘primary duty of care’

(a) the person has a health and safety duty (strict liability)

19 Primary duty of care

A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work.

The PCBU must:

maintain a work environment without risks to health and safety.

provide information, training, instruction or supervision.

monitor the conditions for the purpose of preventing illness or injury.

WHSA ‘primary duty of care’

The “duty to provide a risk free work environment is a duty owed not only to the careful and observant employee, but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable”.

Division 3 Further duties of PCBU’s (s20 – 26)

What directors and managers need to know Managing risk

‘Officers’ have to exercise ‘due diligence’

(duty of officers) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer must exercise due diligence to ensure that the PCBU complies with the PCBU’s duty. WHSA, s27(1)

Due diligence includes taking reasonable steps to acquire and keep up-to-date knowledge of work health and safety matters; and to gain an understanding of the nature of the operations et al. WHSA, s27(5)

WHSA ‘due diligence’

Acquire and keep up-to-date knowledge of work health and safety matters.

Understand the operations of the business and generally of the hazards and risks.

Have available resources and processes to eliminate or minimise risks to health.

Ensure appropriate processes for receiving and considering information regarding incidents, hazards and risks.

Have processes for complying with any duty or obligation.

Breach of health and safety duty

(d) the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed

S17 Management of Risk

A duty imposed on a person to ensure health and safety requires the person:

(a) to eliminate risks to health and safety, so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Reasonably practicable

18 What is reasonably practicable in ensuring health and safety

reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

WHSA ‘what is reasonably practicable’

Steps that are ‘reasonably practicable’

the likelihood of the hazard or the risk concerned occurring.

the degree of harm that might result.

what the person concerned knows, or ought to know, about the hazard or the risk.

ways to eliminate or minimise the risk.

the cost associated with available ways of eliminating or minimising the risk.

WHSA ‘what is reasonably practicable’

Employers “are required to take all practical precautions to ensure safety in the workplace, which requires constant vigilance and employers must adopt an approach to safety which is proactive and not really reactive.”

“The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in the performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment.”

WHSA ‘what is reasonably practicable’

“At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to have been in existence….“At the other end of the scale… where there is a known risk which entails the potential for serious risk to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk”.

What directors and managers need to know Managing risk

(d) the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed

A person’s conduct causes death if it substantially contributes to the death.

Division 6 Industrial manslaughter (NT)

S34B (1) A person commits the offence of industrial manslaughter if:

(a) the person has a health and safety duty; and

(b) the person is a PCBU or an officer of a PCBU; and

(d) the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed; and

(e) the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.

Maximum penalty:

(a) for an individual – imprisonment for life; or

(b) for a body corporate – 65 000 penalty units.

Criminal Code applies

Criminal Code Act “Part IIAA Criminal responsibility for Schedule 1 offences and declared offences” applies (43AA – 43CD)”

Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Offences by companies

Division 5

43BK General principles

(1) This Code applies to bodies corporate as well as natural persons.

(2) This Code applies to bodies corporate in the same way as it applies to natural persons, but subject to the changes made by this Part and any other changes necessary because criminal liability is being imposed on a body corporate rather than a natural person.

(3) A body corporate may be found guilty of any offence, including one punishable by imprisonment.

“Intentionally”

Criminal Code: 43AI Intention

(1) A person has intention in relation to conduct if the person means to engage in that conduct.

(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.

(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.

“Intentionally” – corporate

If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate. CCA, s43BL.

If intention is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence. CCA, s43BM(1).

Criminal negligence

(e) the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.

43AL Negligence

A person is negligent in relation to a physical element of an offence if the person’s conduct involves:

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist,

that the conduct merits criminal punishment for the offence.

Negligence – companies

43BN Negligence

(1) The test of negligence for a body corporate is that set out in section 43AL.

(2) Subsection (3) applies if:

(a) negligence is a fault element in relation to a physical element of an offence; and

(b) no individual employee, agent or officer of the body corporate has that fault element.

(3) The fault element of negligence may exist on the part of the body corporate if its conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).

(4) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or

(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

Industrial Manslaughter

(e) the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.

Category 1:

Health and safety duty; and

Without reasonable excuse, engages in conduct exposes to risk of death or serious injury or illness;

Reckless as to the risk to an individual of death or serious injury or illness

“Recklessness”

Criminal Code: 43AK Recklessness

(1) A person is reckless in relation to a result if:

(a) the person is aware of a substantial risk that the result will happen; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

(2) A person is reckless in relation to a circumstance if:

(a) the person is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

Recklessness – companies

43BM Fault elements other than negligence

(1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.

(2) The ways in which authorisation or permission may be established include:

(a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; and

(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; and

(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; and

(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.

Burden of proof

43BR Legal burden of proof – prosecution

(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.

(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof.

43BS Standard of proof – prosecution

(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

(2) Subsection (1) does not apply if a law specifies a different standard of proof.

Summary

Assuming you have a health and safety duty, you are a PCBU or officer – and if the following are proved beyond reasonable doubt and no defences are available then you would be guilty.

You failed to eliminate or minimise the risks to health and safety, so far as is reasonably practicable (you were not constantly vigilant, proactive (and not reactive) and did not take all practical precautions to ensure safety in the workplace; you cannot demonstrate the costs, difficulty or trouble occasioned by the measures to deal with the potential for serious risk to persons, significantly outweigh the risk);

Your conduct breached the health and safety duty and you meant to engage in that conduct;

The breach caused or substantially contributed to death of an individual to whom the health and safety duty was owed;

You were aware of the substantial risk that the result will happen and having regard to the circumstances known to you, it was unjustifiable to take the risk. Or your conduct involved such a great falling short of the standard of care (that a reasonable person would exercise in the circumstances involving a high risk of death) that the conduct merits criminal punishment.

Not transferable, no contracting out

WHSA

S14 Duties not transferable

A duty cannot be transferred to another person.

S15 Person may have more than one duty

S272 No contracting out

A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.

Comment

Criminal Code Defences would be available – 43BA Intervening conduct or event; 43BB Duress; 43BC Sudden or extraordinary emergency; 43BD Self-defence; 43BE Lawful authority.

The regulator requires the consent of the Director of Public Prosecutions to bring proceedings for a Category 1, Category 2 or Category 3 offence in respect of a death; or industrial manslaughter. WHSA, s231B

This would be an indictable offence; whether entitled to trial by jury if the plea is not guilty.

The Court can find an offence per s31 Category 1 or s32 Category 2 in the event 34B Industrial Manslaughter is not made out.

Comment

What kind of difficulties will be encountered proving intent? Proving great falling short of the standard of care?
What issues will arise proving corporate intent, negligence or recklessness?
Will prosecutions against small businesses be easier (and against large corporations more difficult)?
Will the industrial manslaughter provisions be used disproportionately against small business owners and small business directors?
Will criminal proceedings make any difference to company officers or executive management in larger companies?
Will this cause defensive strategies on the part of employers, officers?
Will this drive and or reward the right behaviour?
Will cultural change will be required?

Case studies

Damday Pty Ltd v Work Health Authority

Work Health Authority v Glen Cameron Nominees Pty Ltd

Gelding v Gibbo’s Tyres Pty Ltd

Work Health Authority v Australian Green Properties Pty Ltd

NTWS Prosecutions

25 Sep 19: The injured worker slipped and fell at the first skylight opening and required an ambulance to transport him to hospital. Breakthrough (NQ) Pty Ltd, the injured worker’s employer was fined $30,000 for breaching section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011(the Act) for failing to comply with a health and safety duty, and fined $2500 for breaching section 39 of the Act for failing to preserve an incident site. Probuild (NT) Pty Ltd the principal contractor of the worksite, was also fined $30,000 for breaching section 32 of the Act, for failing to comply with a health and safety duty.
11 Oct 19: NTWS NT WorkSafe has charged Buslink NT Pty Ltd, after one of its bus drivers was pinned and killed in a bus rollaway incident. The NT WorkSafe investigation found Buslink NT had failed to implement adequate control measures to manage the issue of bus rollaway, despite numerous safety reports in the Australian bus industry addressing the issue. This failure not only contributed to the death of their worker, but also had the potential of placing the health and safety of their passengers and nearby pedestrians at risk (s32, category 2).
7 Nov 19: NT WorkSafe has charged Kawasaki Heavy Industries Ltd and Whittens Group Pty Ltd, after a worker was killed in a workplace incident at the Inpex Onshore LNG Facility (s32, category 2). On 14 Jan 20, NT News reported Kawasaki Heavy Industries Ltd and Whittens Group Pty Ltd were both charged in relation failing to maintain a safe system of work or provide supervision as required (to Mr Delaney who was killed when he fell off scaffolding and suffocated after being engulfed by perlite insulation dust”.
14 Nov 19: NT WorkSafe has charged Dexter Barnes Electrical, a Tennant Creek based electrical services company, and its Director Russell O’Donnell, over failures in the workplace which resulted in the death of fourth year apprentice electrician Mr Derick Suratin on 25 February 2019. Mr Suratin and a third year electrical apprentice were working unsupervised on the roof of the Tennant Creek Fire Station conducting electrical work on a live system. Mr Suratin was electrocuted when he made contact with a live wire and was unable to be revived. Company and director charged (s32, category 2)
14 Feb 20: NT WorkSafe has accepted a $1.3 million enforceable undertaking from the Department of Infrastructure, Planning and Logistics (DIPL) as part of legal action stemming from a fatal road accident in Darwin in 2016. NT WorkSafe alleged that a traffic diversion setup for the Tiger Brennan Drive duplication was not in accordance with an approved traffic control diagram nor with Australian Standards. (s32, category 2)
17 Feb 20: NT WorkSafe has charged NT WorkSafe has charged Queensland based company Hewitt Cattle Australia Pty Ltd with one breach of section 32 . The charges related to a serious incident at Ambalindum Station on 8 February 2018 in which Mr Watts and a worker he subcontracted fell from a height as they were being lifted in a man cage by a telehandler.

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The NT Industrial manslaughter reforms: what directors and managers need to know and manage

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