The recent prosecution of a self-employed owner of a scrap-metal facility for the OHS offence of reckless endangerment demonstrates that there is no need for an offence of industrial manslaughter in Victoria.
The prosecution was the first to result in a person being given a custodial sentence, since the offence was introduced in 2004.
The business owner was fined $10,000 and sentenced to six months' jail after pleading guilty to breaching sections 24 ("Duties of self-employed persons to other persons") and 32 ("Duty not to recklessly endanger persons at workplaces") of the Victorian Occupational Health and Safety Act 2004.
The business owner lodged an appeal against the jail sentence but subsequently decided to drop the appeal.
In February 2017, a person was standing in a bin on the tines of a forklift being driven by the scrap-metal business owner when he fell through the bottom of the bin, after which the bin and its load of steel fell on him, causing fatal head injuries. The bin was in very poor condition and the business owner had never held a forklift license.
The offence of reckless endangerment was inserted into the OHS Act 2004 by the then-Labor Government as an alternative to the offence of industrial manslaughter. The offence ensures that a person who, without lawful excuse, recklessly engages in conduct that places another person in danger can be found guilty of an indictable offence.
Industry associations, including Master Builders, advocated for the offence of reckless endangerment as an adequate response to the worst type of offending that could occur.
State and territory governments also subsequently accepted the offence of reckless endangerment as an appropriate standard when they agreed to the adoption of the Model Work Health and Safety Act in 2010.
The reckless endangerment offence under the Victorian OHS Act 2004 carries a maximum penalty of five years jail, or the highest monetary penalty available for OHS offences under the Act just – which is currently under $3.2 million.
In the recent prosecution, the court had at its disposal the discretion to apply a longer jail sentence or a higher monetary penalty but it chose not to do so.
Master Builders questions why a more serious offence, with higher jail sentences and fines, is needed when the existing law is appropriate?
In May 2018, the Victorian State Government announced its intent to legislate for the offence of industrial manslaughter. The offence would provide for jail sentences of up to 20 years and fines of up to $16 million.
The standard that would apply to criminal manslaughter would be consistent with the level of offending that was committed by the scrap yard owner – a failing that was so short of that of a reasonable standard that it warranted a criminal sanction. If the offence of industrial manslaughter existed today, it is highly likely that the sentencing outcome in this case would have been the same. Even with twenty years jail available, the business owner would still most likely have received a six-month jail sentence.
The industrial manslaughter provisions, based on a negligence test, will, perversely, be easier to prove than the offence of reckless endangerment and bring with it higher penalties. Master Builders believes that governments should be introducing laws that will improve safety standards; new laws that seem only concerned with penalties will not achieve this objective.
The offence of industrial manslaughter has existed in the Australian Capital Territory (ACT) since 2003. Charges were laid in the ACT for the first time in April 2018, with a crane operator charged. The state of Victoria has had a higher level of safety performance than the ACT every year since 2003.
Queensland also legislated for industrial manslaughter in October 2017 and similarly the state of Victoria’s OHS performance has been superior to Queensland’s year after year.
Master Builders believes that the introduction of such an offence does nothing to improve safety performance.
Master Builders urges the Victorian State Government to consider measures that will improve safety performance, such as the adoption of the due diligence provisions in the model Work Health and Safety Act and the broader obligations that exist in relation to safety in design. These are measures that would improve safety outcomes rather than just being legislative blunt instruments.