The right to a safe and healthy working environment is a fundamental human right and essential to decent work. Despite this right, every year an average of 200 workers are killed at work with further 5,000 workers dying from diseases caused by their work. Every one of these deaths is a tragedy that could have been prevented.
The ACTU strongly supports the inclusion of a strong ‘outcome-based’ offence to sit alongside, and complement, the existing ‘risk-based’ offences in the WHS Act and believes this reform is long overdue. The inclusion of an industrial manslaughter offence is critical to not only ensuring that both a strong effective deterrent exists within the WHS framework but also that appropriate justice is available for the families, friends and workmates of those who are killed at work.
As noted in the review of the Model WHS Laws the current criminal law is limited in its ability to respond effectively to work-related deaths caused by negligence in the workplace, in particular by larger corporations. Governments across Australia and internationally have cited the challenges with their respective criminal codes and ‘the need to identify an individual director or employees as the directing mind and will of the corporation… ultimately means that manslaughter prosecutions under the Criminal Code are only successful against small businesses and that prosecutions against large corporations are unlikely to succeed’.
Another limitation of criminal manslaughter offences is the inability to sanction corporations. The inability to imprison a corporation has been a barrier to achieving justice for workers killed at work. The ability for courts to impose significant financial penalties is a critical element to effective industrial manslaughter provisions.
It was nearly 5 years ago that governments received Marie Boland’s review of the Model WHS Laws which called for an industrial manslaughter offence to be included in the Model WHS Laws. Since that time we have seen nearly all harmonised jurisdictions introduce an offence. It is right that the Commonwealth also ensure that such an offence is included in the WHS Act.
