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Managing your subcontractors under industrial manslaughter laws

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In the ACT, the Work Health and Safety Amendment Bill 2021 (the Bill) to amend the Work Health and Safety Act 2011 (WHS Act) to include industrial manslaughter was passed in November 2021.  There have been two convicted cases of industrial manslaughter. Both are Queensland cases where the first case the corporate was fined $3 million and in the other case where the owner was sentenced to jail for 5 years.

Before the Bill was passed, industrial manslaughter was covered under the Crimes Act 1900. The passing of the Bill transfers the offence of industrial manslaughter into the WHS Act.

Industrial manslaughter should not be regarded as a fear factor in managing the liability and the relationship the members have with their subcontractors. It is important that members understand what industrial manslaughter means to their business to avoid any counter-productive behaviour driven by such fear. Industrial manslaughter is at the very serious end of offending and is where a person conducting a business or undertaking (PCBU) recklessly fails to exercise their WHS duties and in doing so results in the death of a worker.

What is industrial manslaughter?

In the ACT, a PCBU or an officer of a PCBU commits industrial manslaughter if:

  • the PCBU breaches a health and safety duty; and
  • a worker has died; and
  • the death is caused by the PCBU’s recklessness or negligence.

The maximum penalty is 20 years’ imprisonment for an individual and a fine of $16.5 million for a corporation.

In NSW, the maximum penalty for an industrial manslaughter conviction is 25 years’ imprisonment for an individual and a fine of $10,295,000 for a corporation.

If you are the head contractor for a construction site, you have a primary duty to the health and safety of the workers and others. Workers, under the WHS Act, are persons who carry out work for your business including subcontractors and volunteers.

Significant case: Gympie small business owner was convicted of industrial manslaughter

A Gympie business owner was sentenced to a five-year jail term, suspended after 18 months of actual prison time, after being found guilty of the industrial manslaughter of his friend. The owner was operating the forklift unlicensed at his place of business and overloaded it with a heavy generator that tipped and fatally crushed his friend who was helping him with the task as a ‘volunteer’ at the site.

The court found that the business did not have any documented health and safety procedures. The jury found that the owner of the business has caused his friend’s death by negligently operating the forklift.

What does industrial manslaughter mean in subcontractor management?

Where a subcontractor is engaged, make sure that you have a clear and separate relationship in relation to the works. As a head contractor, you should monitor and supervise your subcontractors’ health and safety, as far as reasonably practicable. However, you have no obligation to control their work.

Steps PCBUs can take to make sure their operations are safe for your subcontractors:

  • Provide your subcontractor with a general induction detailing the general risks posed to your business before commencing the work
  • Provide site-specific induction in relation to the risks posed on the site the subcontractors are carrying out the work
  • Monitor subcontractors’ safety and compliance with your safety arrangements
  • Include your subcontractors in communication and consultation in relation to health and safety
  • Keep them up to date with changes on site
  • Make sure you do not instruct them to undertake unsafe work
  • Make sure you have documented your safety systems and they are made available to the workers carrying out the work

Induction should not just be the process of how to operate tools or plant, it should include the hazards and risks posed by your business to the workers. When implementing inductions to your subcontractors, PCBUs should consider:

  • What hazards are present to your business?
  • What do your subcontractors need to consider when they design their work and their safety plan?

Failure to inform your subcontractors of the risks and hazards in relation to your work environment may put your subcontractors at risk that they are unaware of and may result in you being liable for any of your subcontractors’ injuries or death.

You owe WHS duties if you are the occupier of or have control over the site. If you engage a contractor to undertake work on a customer’s site that you don’t have control over, you may not have the primary duty to ensure the safety of the site. The contractor has control of the site and will be responsible for the safety of the site. For example, in a case where a solar panel supplier engages a contractor to install the solar panels on a customer’s site, the contractor engaged to install solar panels will be the duty holder for the safety of the site where the installation will be carried out.

Find out more:

If you have any questions in relation to WHS obligations, please reach out to our Industrial Relations and Legal Team on 02 6175 5900.

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