Reckless conduct and industrial manslaughter: what's the difference?

Reckless conduct and industrial manslaughter: what

By Gaby Grammeno on 26 June 2018 How do provisions relating to reckless conduct differ from proposed industrial manslaughter laws?

This question was recently sent to our Ask an Expert service.

Q We are seeking clarity on how section 32 of the Occupational Health & Safety Act 2004 (Vic) differs to potential industrial manslaughter laws. Section 32 imposes a duty on people to ensure they do not recklessly endanger anyone in the workplace. Breach of that duty is a criminal offence and makes individual people liable to five years in jail and a big fine (1800 penalty units). Corporate offenders would be liable to a fine of up to 20,000 penalty units.
 
How does the Act differ to potential industrial manslaughter laws?
 
A The key differences between existing provisions relating to reckless conduct and the proposed industrial manslaughter laws concern the consequences of the recklessness, and the level of penalties.

Consequences of recklessness

 
The existing section 32 of Victoria’s Occupational Health and Safety Act 2004 refers to reckless conduct putting a person ‘in danger of serious injury’, whereas industrial manslaughter provisions would only be relevant in the event of reckless conduct causing a person’s death, as against a death or serious injury.
 
This corresponds to the reckless conduct provisions (section 31) of the various Work Health and Safety Acts, which include conduct resulting in serious injury or illness, as well as conduct resulting in death.

In contrast, sections 34C and 34D of Queensland’s Work Health and Safety Act 2011, the provisions concerning industrial manslaughter, come into play only if the negligent conduct causes a person’s death.

Level of penalties

 
Regarding the level of applicable penalties, section 32 of Victoria’s OHS Act carries a maximum penalty of 20,000 penalty units for a corporation, which equates with $3,171,400 with the current value of penalty units in Victoria. For an individual convicted of reckless conduct causing serious injury, the maximum penalty is 1800 penalty units ($285,426) or five years’ imprisonment, or both.
 
This corresponds to the maximum penalties under section 31 of the various Work Health and Safety Acts, which equates in Queensland with a maximum fine of $3,784,500 for a corporation. For a person conducting a business or undertaking (PCBU), or an ‘officer’ of a business in Queensland, the maximum penalty is $756,900 or five years’ imprisonment, and for anyone other than a PCBU or an officer, the maximum penalty is $378,450 or five years’ imprisonment.
 
In contrast, breach of Queensland’s industrial manslaughter provisions carries a maximum penalty of 100,000 penalty units for a corporation or 20 years’ imprisonment for a PCBU. A quick note is warranted here on the value of a penalty unit for the purposes of the Work Health and Safety Act 2011 (Qld) and for various other Acts. The value of a penalty unit in this specific context is, under  5(1)(d) of the Penalties and Sentences Act 1992 (Qld), $100 per penalty unit, giving a total penalty under the Queensland legislation of $10m. 

It should be noted that there are other Acts that prescribe penalty units in a variety of situations. Those penalty units will have a different dollar value to that prescribed in the Queensland legislation. For instance, s4AA of the Crimes Act 1914 (Cwlth) sets a value (at the time of writing in July 2018) of $210 per penalty unit. Given the similarities in terminology and function, it is quite easy to accidentally calculate an incorrect potential fine using the wrong dollar value. 

For a senior officer, the maximum penalty for industrial manslaughter is 20 years’ imprisonment.
 
It remains to be seen whether Victoria, South Australia or other states or territories will bring in industrial manslaughter provisions and, if they do, the maximum penalties that will apply. But it would appear likely that the same key differences would apply in Victoria as in Queensland, that is, the industrial manslaughter provisions would only be relevant if the reckless conduct caused a person’s death, and the level of penalties would be significantly higher.
 

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