Industrial manslaughter: a justified amendment to OSHA?

COURTNEY MCNISH

Recently, I read an article about the first individual convicted of industrial manslaughter in Queensland, Australia.

He was sentenced to five years in jail under Queensland’s industrial manslaughter laws (Section 34C of the Work Health and Safety Act 2011).

Before this, in June 2020, Brisbane Auto Recyclers was the first corporate body fined when it pleaded guilty to industrial manslaughter and was thereafter fined AUD$3 million or US$1,925,887.47.

In the matter of the individual, the court determined that the negligent conduct on the part of the business owner resulted in the death of his worker, who was assisting him with removing a generator from a vehicle on a job site.

The court also noted that the business owner acted with negligence, as he had no policy documents on the company’s health and safety procedures, nor any procedures for the proper use of equipment. Also, he was not licensed to operate such equipment.

This Australian provision is contained in its 2011 Health and Safety Statute, unlike the 2007 corporate manslaughter/homicide legislation of the United Kingdom. The latter is altogether a separate statute from the UK’s HSE laws and prosecutes the corporate body and not the individuals.

Directors, other officers and management can, however, still be held to account under the HSE legislation where it is established that a fatality occurred due to violations of that statute or their duty of care.

This of course aroused my concerns as to our local laws, and I wondered if it was time for us to include industrial manslaughter as an amendment to our own OSHA legislation.

“Blue-collar” workers, skilled and unskilled manual labourers, face a higher degree of risk daily because of their work environment, compared to their “white-collar” counterparts. All employers have an obligatory duty of care towards all their employees and are legally required to provide as safe as practically possible a work environment.

On June 22, 1981 the ILO adopted its Occupational and Safety and Health Convention, wherein Article 16 defines the responsibilities of employers to provide a safe environment with respect to machinery, equipment, chemical and biological substances, as well as the requirement to provide the necessary protective gear.

The World Health Organization did a global assessment and discovered that an estimated 2.1 per cent of deaths and 2.7 per cent of the disease burden worldwide can be directly linked to occupational hazards. It is no surprise that it is the low- and middle-income countries that suffer the highest numbers of deaths and disabilities as a result of work-related accidents.

In her address at the September 2016 term opening ceremony, Industrial Court president Deborah Thomas-Felix encouraged employers to promote proper health and safety practices as she stated that between 2006 and 2015, there were 102 on-the-job fatalities, of which 33 were in the construction sector.

We have seen our fair share of occupational accidents which have unfortunately resulted in fatalities. In October 2005 there was an explosion at a manufacturing company in Port of Spain which resulted in the death of two of the company’s employees. The findings of the investigation revealed that the acting production manager and shift superintendent, who were responsible for the shift at the time of the explosion, breached the company’s safety procedures. Indeed it was as a direct result of these breaches that the two fatalities occurred. The company took disciplinary action and subsequently dismissed both employees.

Neither of these two management officers nor the company faced any criminal prosecution for the deaths of these workers. The company of course awarded some compensation to the families, including funeral expenses, and bore the cost of medical treatment for the other injured employees. The OSH Agency did, however, bring legal proceedings against the company for breaches of the act.

As a matter of ironic interest, it must be noted that subsequent to the dismissals, the Industrial Court held that the workers were dismissed in circumstances not in accordance with good industrial-relations practices, as the company’s disciplinary procedure was flawed. Both employees were awarded significant compensation in the form of damages.

Tragically, earlier this year saw yet another occupational disaster when four out of five divers doing repairs and maintenance exercises underwater died. Six months after this event, a commission of enquiry into the accident was launched. I say this in utter amazement that it would take so long to launch such a critical public inquiry into a such tragic event.

Under our OSH Act the maximum punishable fine is $20,000 for each breach. However, breaches resulting in death, critical injury or occupational disease carry an additional fine of $100,000 or an amount equivalent to three years’ pay of a deceased or injured worker. These are fines against the company and by law are payable into the consolidated fund of the State. Provisions for compensation to the estate of deceased workers as well as to those who may be injured are, however, contained in the Workmen Compensation Act, which remains antiquated and outdated.

Upon reflection, I am entirely convinced that our local OSHA legislation as well as the Workmen Compensation Act is in urgent need of amendment. The former must now include an industrial manslaughter/homicide provision with custodial sentences for individuals and limitless fines for organisations found in breach of the general duty of care. The Workmen Compensation Act is over 60 years old and its compensation provisions and medical expenses payable by the employer must reflect modern-day values.