Industrial manslaughter laws will have a significant impact on post-incident investigations, according to national law firm Mills Oakley.

Industrial manslaughter does not, of itself, require a change to risk management systems, said Mills Oakley partner in workplace relations, employment and safety, Harold Downes, who explained that such laws are a dramatic change to potential legal consequences.

“Either your risk management system is compliant or adequate, or it is not,” said Downes.

“Industrial manslaughter doesn’t change that. What industrial manslaughter changes is the legal consequences if the systems fail and someone is killed.”

Downes also said he has “grave concerns for methodologies that ignore the fact that we do not operate in a no-blame culture or environment”.

“Methodologies that naively think it is all about finding out what went wrong and fixing it, are destined to be hijacked by lawyers who want to do everything under privilege so that no findings ever see the light of day,” he said.

“That is a terrible outcome. Post-incident investigations can be done so that learnings are extracted and corrective action is taken.

“Just do not try and do it under a single investigatory system with lawyers on your back who do not know how to achieve prosper risk management outcomes at the same time a proper legal protection.”

Downes, who was speaking ahead of the AIHS Visions Conference, which will be convened virtually from 10-13 November, also explained that there are also a number of unintended legal consequences as a result of the industrial manslaughter offence in Queensland, he added.

“Bizarrely the offence introduced off the back of the Dreamworld catastrophe would not have been able to be relied on had it been in place on 25 October 2016,” he said.

“That is because the offence only applies in Queensland if workers are killed.”

The effect of the unintended consequences will be very difficult to measure, according to Downes, who provided some examples of potential impacts:

• Post-incident investigations in an industrial manslaughter or potential industrial manslaughter event will be exceedingly difficult. No manager who is properly advised will participate in any root cause investigation interview conducted by the PCBU. Many PCBUs want to collaborate with regulators to maintain or preserve a ‘relationship’. That does not assist a manager who is facing the very serious risk of a lengthy term of imprisonment and, if they are not a citizen, then deportation when they are released.
• For an offence where the penalty is only imprisonment and up to 20 (or more) years, deportation for non-citizens will be a major consequence. That is particularly so if the defendant is a former refugee.
• Investigations will be delayed as lawyers work through the various conflict situations and try and identify who can act for who and how the confidentiality of information will be achieved.
• A significantly adverse consequence is that investigations will be scoped to avoid the identification of failures at the level of those who are exposed to industrial manslaughter and restricted to only find operator error.

The new industrial manslaughter offence (particularly in Queensland but other jurisdictions as well) is so significant that PCBUs should put it through a management of change process, he added.

“That will determine whether they are sufficiently geared to respond to a fatality or serious injury event which become a fatality,” said Downes.

“Something I have found quite alarming is the lack of appreciation by senior executives in other jurisdictions” – most notably offshore directors and many in Victoria and Western Australia as well as many who are almost solely focused on industry-specific laws such as the Resources Safety Act in Queensland (which focuses on the coal, metalliferous, explosives and petroleum and gas sectors) “of the exposure they have to industrial manslaughter”.

“If you have operations in Queensland (or any industrial manslaughter jurisdiction) or if you are a mining or oil and gas company, you are still exposed to industrial manslaughter,” said Downes.

He observed that the appointment of Aaron Guilfoyle as WHS prosecutor in Queensland has resulted in a very noticeable improvement in the level of sophistication in prosecutions and investigations.

“That is a positive outcome and is welcomed,” he said.

“Prosecution briefs are being produced a lot faster and are more likely to be complete from the get-go. He has also done a very good job at getting penalties lifted.

“It is trite to point out that the WHS prosecutor is subject to the model litigant principles.”

Downes also said that WHS professionals are going to have a “lift their game” to match the increased sophistication being demonstrated by regulators and the WHS prosecutor.

“I have heard many WHS professionals say that they struggle to get engagement from the board. Well, now is the hour,” he said.

“WHS professionals have a fantastic opportunity to engage with those who are exposed and talk about solutions and protection.

“But old-style zealot-like approaches are what turn Boards off and softer skills are required,” said Downes.

Downes will be speaking at the AIHS Visions Conference which will be convened virtually from 10-13 November. The Visions Conference has been run for the past 27 years by the Queensland Division of the Australian Institute of Health and Safety for the benefit of its members and everyone in the Safety Community. For more information call (03) 8336 1995, email visions@aihs.org.au, visit www.visions.org.au or register here.

Article originally published by the Australian Institute of Health and Safety.

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