Industrial manslaughter is one area where there is increased risk for organisations, their directors and PCBUs, and WHS professionals need to be aware of the risks and dynamics that heightened criminal sanctions bring.

Most jurisdictions have now implemented industrial manslaughter laws which carry significant penalties, according to Luke Holland, WHS partner at Sparke Helmore Lawyers.

In South Australia, for example, the penalty is up to 20 years jail time for an individual and $18 million for the PCBU. “The heightened sanctions demand the attention of officers and the PCBU,” said Holland, who was speaking ahead of the South Australian Health and Safety Conference 2024, which will be held on Friday 18 October.

“Following a workplace incident, the tension between our WHS goals and criminal regulation becomes most evident.”

When investigating an incident, Holland said the WHS goal is to collect evidence and to prevent a re-occurrence. “A good investigation may identify the PCBU’s own strengths and weaknesses or areas to improve and consider any corrective action,” he said.

“It might also be undertaken with a level of openness and transparency within the organisation and with workers. In some instances, there might also be shared learnings across the organisation and the sector.

“Ask any criminal lawyer what advice they would give after a potential crime has been committed and they will tell you don’t say a word, you have a right to silence.’ So when you come to the investigation from the criminal angle, you can see that employees might be actively discouraged from sharing information or even participating i.e. remaining silent for fear of being held criminally responsible.”

This approach challenges the ability of the PCBU to learn and share, according to Holland, who said it reduces the likelihood of open investigations where there is a risk that the information will be used to make an individual criminally responsible.

There are a number of steps organisations can take to avoid these scenarios, however, Holland said this is “a difficult balancing act. Our advice would always be to get prompt and accurate legal advice after a serious incident and look to educate PCBUs and officers on the challenges,” he said.

From the PCBU perspective, he said it is worthwhile checking how they would deal with higher-risk incidents, what protocols they have in place when advised of an incident, how they will investigate and where necessary, when to seek legal advice.

Having robust procedures in place will be critically important from an information-gathering and sharing perspective, he added.

“This, coupled with strong investigation procedures, will lead to the identification of risks and guidance for those next steps. In line with this, having good communication channels between upper management and workers is always a good practice, especially in light of the criminal sanctions now in place across Australia.

“It is vitally important to effectively communicate any WHS issues as they arise to ensure that workers are fully informed whether that be via toolbox meetings or other methods.”

He also strongly recommended reminding officers and leaders of their obligation to exercise due diligence. This can be done by briefing sessions and tends to motivate officers/leaders to be more proactive and engaged in safety resulting in positive safety outcomes, said Holland.

For OHS professionals, he reiterated the importance of getting prompt legal advice. “With this in mind, keep pursuing those safety goals but be alive to the risks and dynamics that heightened criminal sanctions bring,” he said.

Holland will be presenting a session on ‘crime and punishment – where WHS goals and criminal regulation collide’ at the South Australian Health and Safety Conference 2024, which will be held on Friday 18 October from 9am-5pm at the Morphettville Racecourse Function Centre. For more information, email events@aihs.org.au, call (03) 8336 1995 or visit the event website.