The Strong Arm of WHS Law in the NT: Enforceable Undertakings and Industrial Manslaughter
Industrial manslaughter to be an offence in the Northern Territory by the end of the year?
The Northern Territory (NT) is a heavy industry based economy, with mining, construction, manufacturing and defence being the primary industries contributing to the NT economy. There are inherent safety risks for workers in these industries. Statistics show that transport, construction, manufacturing and mining are amongst the most dangerous industries for Australian workers. In an effort to improve the safety of employees, the NT Government are considering implementing further deterrents to companies that breach the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (‘the Act’).
Existing deterrent mechanisms such as enforceable undertakings are getting considerable traction in the NT and across Australia. Enforceable undertakings are generally viewed as a practical limb of available punishments for non-compliant companies.
However, deterrents have usually been quite lenient towards company officers, with established legal doctrines separating directors of companies from the companies themselves. This resulted historically in monetary penalties being levelled against companies rather than the direct action against the individuals that run them.
Even with officers being made expressly liable with obligations of safety due diligence under the current safety laws, there have been, until very recently, few examples of individual officers being subjected to fines or custodial sentences arising from industrial deaths.
Increasingly there is support in the NT seeking change to make individual directors of companies liable for the deaths of workers.
What is the current NT Work Health & Safety Legislation?
The NT has established uniform legislation with other states and territories to protect the health and safety of workers. These laws establish that companies owe their workers a range of work safety duties along with setting out various penalties for a contravention of these duties.
NT Worksafe are the administrative and regulatory arm of the Northern Territory Work Health Authority, the statutory body established under the Act. When a company or business is suspected to have contravened a duty under the Act, NT WorkSafe may issue proceedings against them, which may result in penalties being issued where a breach is determined. Following an event alleged or otherwise giving rise to a NT Worksafe prosecution, the Act also allows for companies to undergo demonstrable self-regulation – meaning non-compliant companies can avoid formal prosecution and evidently learn from their own mistakes. This is called an enforceable undertaking.
Exploring Enforceable Undertakings
Enforceable undertakings are a process whereby companies agree to do certain things about safety issues, avoiding the need for prosecution. The enforceable undertaking is a legally-binding contract between NT WorkSafe and the company. It requires the company to perform the strict terms as outlined within the undertaking. It is similar to a private settlement outside of court, except it is made available to the public.
The aim of an enforceable undertaking is to alleviate the need for lengthy and expensive legal proceedings on behalf of both parties, yet still result in a positive outcome for safety. The process is an additional corporate regulatory mechanism available to regulators to ensure a greater compliance amongst companies. Some are of the opinion that enforceable undertakings will result in a speedy, flexible and more appropriate outcomes than court action.
Recent examples of Enforceable Undertakings in the NT
An enforceable undertaking can still be quite costly as recent cases have demonstrated:
In August 2019 Woolworths Group Ltd accepted an enforceable undertaking following the death of a man in a shopping centre loading dock. The man was tragically killed after being run over by a prime mover. It was alleged that Woolworths breached duties under section 32 of the Act, an offence carrying a maximum penalty of $1,500,000 for a body corporate.
Woolworths proposed an undertaking with a total minimum financial commitment of $1,793,500 which encompassed:
- providing upgrades in all docks in NT stores;
- providing refresher training in legal compliance to managers;
- installing defibrillators in all NT stores;
- funding research into continuous monitoring of pedestrians in loading docks via digital technology;
- developing and publishing a Retail Dock Safety Guide;
- donating 17 defibrillators to the community; and
- donating to Lifeline Australia.
In August 2019, BMD Constructions Pty Ltd (BMD) underwent an enforceable undertaking after a motorcyclist was killed at a traffic diversion that was setup as part of a road upgrade the company was undertaking. BMD was also alleged to have breached section 32 of the Act, in that they failed to comply with a health and safety duty.
BMD accepted an undertaking with a minimum financial commitment of $305,000 which stipulated that the company must:
- develop and deliver safety training and awareness packages for the BMD workforce;
- amend training packages and present these to the wider industry at events such as Safe Work Month;
- engage with vocational training providers to deliver a safety training and awareness package to young workers;
- develop traffic management training courses for the construction industry;
- provide a specific manager to manage the enforceable undertaking projects; and
- provide funds to upskill existing a new construction workers.
The Push to Introduce Industrial Manslaughter Legislation
A more serious penalty that the NT Government are considering implementing is new industrial manslaughter legislation. This would bring the NT in line with states such as the ACT and QLD that have already successfully implemented such provisions.
The proposed provisions are aimed at deterring companies and their senior officers from engaging in reckless or negligent conduct that causes the death of workers.
Proposed penalty regimes include life sentences for individuals and fines up to $10M for corporations. The new regime is also premised on the introduction of a new offence of “negligent conduct”, a threshold far easier to establish than “recklessness”. The new regime, if introduced, could lead to a larger number of prosecutions if instances of “negligent conduct” were to occur and be proven.
Legislation is expected to be introduced to parliament by next week (late September), with NT Attorney-General, Natasha Fyles pushing for the new law to be passed.
“These laws will help protect Territorians at their place of work, and mean employers are on notice about unsafe practices and sites,” Ms Fyles said.
Unions NT General Secretary, Joel Bowden agreed.
“We hope these laws will bring safety into sharp focus for all business, all companies and all workers, and that profits aren’t put before safety,” Mr Bowden said.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.