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Industrial Manslaughter Implications for Due Diligence of University

Senior Managers

Leanne MumfordSenior OHS Officer

Risk Management OfficeUniversity of Sydney

6 June 2003

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OutlineCorporations and Criminal LiabilityExisting OHS Laws in AustraliaThe Victorian Crimes (Workplace Deaths and

Serious Injuries) BillRobust Due Diligence for University

ManagersConclusions

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Corporate Criminal Liability

Corporations and crimes for which the only penalty is imprisonment.

Manslaughter resulting from negligence.Culpable state of mind – intention, knowledge,

recklessness.The “Guilty Mind” of a corporation.Systemic fault, aggregation of conduct,

organisational decision-making.

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OHS Legislation General Duties

Two main approaches to employers’ general duties:

take all reasonably practical steps to protect health and safety – Commonwealth, ACT, NT, Victoria, Tasmania, SA & WA

ensure health, safety and welfare of employees – NSW & Queensland.

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Typical Specific OHS DutiesSpecific duties to employees typically include:safe and healthy systems of worksafe and healthy substances and plantsafe and healthy working environmentinformation, instruction, training & supervisionwelfare facilitiessafe access and egressconsultation with employees.

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Directors’ & Officers’ DutiesDirectors and officers of Bodies Corporate –

specific duties, liable for corporate offencesDefences and due diligence:

not reasonably practical to comply (NSW)outside control and not practical to prevent

(NSW)not in a position to influence corporate

conduct (Qld)exercised reasonable diligence (Qld).

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Crimes (Workplace Deaths and Serious Injuries) Bill

Defeated in Victoria’s upper house – June 2002.

Would have created new offences of corporate manslaughter negligently causing serious injury.

Would have clearly imposed criminal liability on senior officers of corporations.

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Negligence under the BillCorporate manslaughter – negligence that resulted in death of employee.Corporate negligence would include failure to:

adequately manage, control or supervise conduct of one or more employees, agents or officers

engage reasonably capable contractorsprovide adequate information systems.

Senior officer negligence would include failure to take reasonable action to remedy a known dangerous situation.

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Senior Officer Liabilities under the Victorian Bill

Senior officers would be liable for negligent corporate conduct if they:

were organisationally responsiblecontributed materially to the offence in

performing or failing their dutiesknew the organisation’s conduct carried a

high risk of death or serious injuryshould have acted to avert the risk.

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Who are “Senior Officers”?Under the Corporations Act:Directors are those in control of and responsible for the organisation as a wholeOfficers are those who make or participate in making decisions that affect the whole or a substantial part of the corporation’s business.

In the University context, directors are equivalent to Council Members, Fellows of Senate, etc and senior officers to VC, DVCs,PVCs, etc.

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Penalties under the Bill

Offences by senior officers would have carried penalties of imprisonment for up to: 5 years for corporate manslaughter 2 years for negligently causing serious injury.

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Robust Due DiligenceDirectors and officers can be held personally

liable for corporate failures.They need to satisfy themselves that the

organisation is acting diligently to prevent workplace death, injury and ill-health.

In some jurisdictions, ignorance is no defence.Why letter-of-the-law compliance is a risky

strategy – the need for robust due diligence.

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Due Diligence Activities 1

Formal compliance policy supported by accountabilities, operating procedures and disciplinary procedures.

Leadership and an appropriate culture.Risk management approach with board

oversight of prime risks.Reporting systems for breaches, complaints

and incidents.

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Due Diligence Activities 2

Facilities maintenance program.Communications system and consultation

mechanisms incorporating unimpeded transmission of “bad news” to the top.

Monitoring and audit programs overseen at board level.

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ConclusionsDirectors and officers who don’t take an active

interest in health and safety legal compliance of their organisation may find themselves personally liable.

Involvement in the activities outlined will help them to diligently discharge their duties and protect themselves.

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Questions

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