An employer that requires an employee to commit a crime is an accessory to that crime. For example, breaking into a construction site to climb an incomplete building is a crime - usually called breaking and entering. The employee has committed the crime; the employer and the individual agents of the employer who were complicit in that crime are accessories to that crime and can all be prosecuted.
In addition, requiring an employee to place themselves in a dangerous situation can lead to charges of reckless endangerment, manslaughter or even murder if the employer is engaged in a criminal enterprise.
Legal but hazardous
All jobs contain hazards and some are inherently more hazardous than others. The top 5 most hazardous industries worldwide are:
If we look at developed countries, for example australia, the top 10 are:
- Agriculture, forestry and fishing,
- Transport, postal and warehousing,
- Wholesale trade,
- Health care and social assistance,
- Public administration and safety,
- Electricity, gas, water and waste services,
- Administration and support services.
So, it is not illegal to require employees to do hazardous things. However, it is generally illegal to not manage those hazards. For example, s3(2) of the Commonwealth
Work Health and Safety Act (State laws are harmonised in WHS so they all say the same thing) says:
(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.
And s18 says:
18 What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
So, for your example of a stunt in the entertainment industry; the employer (and their managers) must satisfy their obligations to eliminate or minimise risk to the extent that is reasonably practicable. If they do that then they are not liable if they don't then they are.
There are various penalties laid out in the legislation for failing to perform specific duties but there are also "catch-all" offences:
- Category 1 - Reckless conduct (s31),
- Category 2 - Failure to comply with a duty exposing an individual to a risk of death or serious illness or injury (s32), and 3
- Category 3 - Failure to comply with a duty (s33).
Depending on the circumstances, your scenario would be a Category 1 or 2 offence with the following maximum penalties:
- individual: $300,000 and/or 5 years imprisonment
- individual as an employer or as an officer of an employer: $600,000 and/or 5 years imprisonment
- body corporate - $3,000,000
- individual: $150,000
- individual as an employer or as an officer of an employer: $300,000
- body corporate - $1,500,000
In addition, where the actions of the individual are not just reckless but criminally reckless, then they can be charged with manslaughter which has a maximum penalty of 25 years imprisonment.
Notwithstanding anyone's breaches of Work Health and Safety Law, an employer is strictly liable for illness, injury or death of an employee in the course of their employment under statutory insurance schemes.