Industrial Manslaughter Law is Now in Effect

Workplace manslaughter is now a jailable offence.

Businesses in each state and territory are governed by different pieces of legislation that define industrial manslaughter and their legal obligations to their employees. Businesses of all sizes must understand their responsibilities and the consequences of failing to comply with the law. Each state and territory have its own definition of industrial manslaughter.

To ensure a safe working environment for all employees, all employees have a duty of care and a legal obligation. Workplace safety laws in Australia are stringent, and they are frequently used as the foundation for legislation passed in other countries. This is because our WHS laws encourage positive employer obligations and leave little to no room for misconduct or maladministration to go unprosecuted. There has been a greater push in recent years to create new criminal offences for industrial manslaughter. The goal is to create a federally nationally consistent system for workplace deaths. These modifications make the existing duty of care more specific and targeted to workplace incidents.

What is industrial manslaughter?

Manslaughter is defined as the intentional killing of another person. The law makes it possible for a company or corporation to be held liable for the death of its employees. The manslaughter legislation intends to prevent workplace deaths, offer a stronger disincentive for duty holders to comply with their OHS requirements, and, most significantly, convey a strong message that endangering people’s lives will not be tolerated.

Industrial manslaughter is defined broadly as an offence committed when an employer or a person conducting a business or undertaking (PCBU) knew or should have known that any act or omission constituting a breach of their duties posed a substantial risk of serious harm to a person. To prove industrial manslaughter, the breach of duty must result in the death of the person to whom the obligation is owed.

The construction industry is most commonly associated with industrial manslaughter because employees’ physical safety is frequently compromised. In simplest terms, blue-collar workers face more risks than white-collar workers. The danger to life is higher due to the nature of the work, and our laws are still trying to keep up.

Industrial manslaughter laws in Australia are complicated and vary by state and territory; shifting expectations have a significant impact on judicial oversight, and their incoherence can sometimes be attributed to the current political situation. In comparison, the Australian construction industry is far from incoherent. According to the Australian Industry and Skills Committee (AISC), this industry generates more than $360 billion in revenue per year and accounts for approximately 9% of the country’s GDP.

Duties for PCBU under Industrial Manslaughter and WHS Acts

To prevent workplace incidents, deaths, and injuries, all corporate officers and managers, not just shareholders, must establish and regularly review forward-thinking quality assurance frameworks. Meeting the duty of care for health and safety and avoiding “negligence” is a dynamic responsibility that changes as technical information becomes available to the business. It should be noted that if an incident occurs within the business in another state, a Board member or senior officer based in one state may be held liable for industrial manslaughter. As a result, when establishing national safety settings and goals, nationally operating businesses may need to consider the severity of a State’s obligations. This article answers important questions about Australian industrial manslaughter laws, penalties, and jurisdictional differences.

What constitutes industrial manslaughter is broken down into the following fundamentals: those charged must be a body corporate or a person who is not an employee or volunteer. Under the relevant state or territory legislation, the victim must have been owed a specific duty of care. Those charged violated the duty owed through reckless and/or negligent behaviour. The breach of duty resulted in the victim’s death, and the person charged must have acted consciously and voluntarily at the time of the breach if they are a natural person.

Manslaughter Legislation is currently enforced in the following States & Territories

Maximum possible jail years for Industrial Manslaughter

All the States have passed industrial manslaughter legislation, except Tasmania. Industrial manslaughter is not currently an offence in Tasmania.

WorkSafe TAS

Industrial manslaughter is not currently a crime in Tasmania. There are no Bills in the Tasmanian Parliament that would create an offence of industrial manslaughter. The Tasmanian Unions have requested that the State Government implement the offence of industrial manslaughter, but no further information has been provided. However, the Work Health and Safety Act 2012 (Tas) defines category 1 offences as reckless conduct that exposes an individual to a risk of death, serious injury, or illness.

The maximum penalty for Category 1 offences is as follows:

1. $300,000 and/or 5 years imprisonment for individuals other than as a PCBU or as an officer
2. $600,000 and/or 5 years imprisonment for PCBU’s or officers
3. $3,000,000 for a body corporate.

Considering the risks to both businesses and individuals, employers must ensure that they are protecting their employees and meeting their legal obligations related to the effective exertion of their “duty of care” as well as the fulfilment of obligations concerning workplace safety. Industrial manslaughter laws are harsh, and rightly so.

Safework NSW

The NSW Labour Party wants harsher penalties for industrial manslaughter. Adam Searle, NSW Labour Leader in the Legislative Council and Shadow Minister for Industrial Relations, has confirmed that NSW Labour will reintroduce legislation into parliament in 2021 to create industrial manslaughter laws with severe punishments, including prison time, to hold managers and supervisors accountable for workplace fatalities. Work Health and Safety Act 2011 (NSW), the Bill creates a new industrial manslaughter offence for persons conducting a business or undertaking (PCBU) and senior officers of a PCBU.

NSW had rejected enacting specific industrial manslaughter laws, instead of relying on the Crimes Act 1900 (NSW), which carries a 25-year prison sentence. The Crimes Act 1900 is a New South Wales statute that defines the majority of criminal offences in the Australian state of New South Wales. These three pieces of legislation, along with the Crimes Act 1914 and the Federal Criminal Code Act 1995, constitute the majority of criminal law in New South Wales. However, there was a proposal to change the model WHS Act to include a new offence of industrial manslaughter (see the National Review of the Model WHS Laws).

While there is no specific legislation in place in NSW for industrial manslaughter at the moment, amendments to the Work Health and Safety Act 2011 (NSW) have increased penalties and offences to include gross negligence, an often-cited and overwhelming contributing factor to the incidence of ‘industrial manslaughter.’ Furthermore, the explanatory memorandum states that the death of a worker may constitute manslaughter under the Crimes Act 1990 (NSW), which is punishable by 25 years in prison. However, on 5 May 2021, the Berejiklian Government introduced the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 (NSW), which would include industrial manslaughter as a separate offence creating a standardisation industrial manslaughter offence.

Under the proposed legislation, a PCBU or a senior officer will commit an offence if the person has a health and safety duty; and a worker or other person dies at work, or is injured at work and later dies, whether or not while carrying out work for the business or undertaking; and the PCBU or senior officer’s conduct causes the death, and the PCBU or senior officer was negligent or reckless.

The Offence

A PCBU or a senior officer could face a maximum penalty of 25 years in prison for an individual or more than $10 million for a corporation.

WorkSafe QLD

The industrial manslaughter offence under Queensland was legislated on 23 October 2017, industrial manslaughter provisions in the Work Health and Safety Act 2011 (WHS Act), Electrical Safety Act 2002 (ES Act), and Safety in Recreational Water Activities Act 2011 (SRWA Act) commenced. On 23 October 2017, the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) added industrial manslaughter as a new offence to the Work Health and Safety Act 2011 (Qld) (WHS Act).

The WHS Act now includes two industrial manslaughter offences for PCBUs and senior officers. These provisions make it a crime for a person conducting a business or undertaking (PCBU) or a senior officer to cause the death of a worker negligently.

The offence is committed in particular if:

• In the course of carrying out work for the business or undertaking, a worker dies or is injured and later dies (including during a work break)

• The worker is killed as a result of the PCBU’s or senior officer’s actions (i.e. the action or inaction of the PCBU, or senior officer, substantially contributes to the death)

• The PCBU, or senior officer, is negligent in causing the worker’s death (i.e. the person’s action or inaction deviates so far from the required standard of care).

The maximum penalty for a PCBU as an individual is 20 years imprisonment or as a body corporate is a fine of $13,785,000.

SafeWork SA

Industrial manslaughter is set to become a crime in South Australia, delivering on the Labor Government’s promise to reduce the risk of preventable workplace deaths and injuries. Preventable workplace deaths may result in jail time or a large financial penalty for those in charge of a business or at an executive level.

The South Australian Greens party reintroduced the Work Health and Safety (Industrial Manslaughter) Amendment Bill (SA) on 23 September 2020, to create a separate criminal offence of industrial manslaughter. The Work Health and Safety (Industrial Manslaughter) Amendment Bill 2022 was introduced and read in the Legislative Council of the South Australian Parliament on 3 May 2022. The Bill is currently progressing through the Legislative Council of the South Australian government with its outcome likely to be determined later this year.

An employer or officer will commit an offence under the proposed legislation if: the employer owes an employee a basic duty of care. That duty is violated by the employer or officer. The employer or officer knew or should have reasonably known or was recklessly indifferent to whether the act or omission constituting the breach posed a substantial risk of serious harm to a person. A person is killed as a result of the breach (whether or not the person was an employee of the employer and whether or not the death occurred in a workplace).

Breaking News: 5 July 2023 Update – The Labor Government will this week introduce new laws to make industrial manslaughter a criminal offence in South Australia.

The Work Health and Safety (Industrial Manslaughter) Amendment Bill introduces new legislation in South Australia to address serious breaches of health and safety in the workplace, particularly those resulting in the death of a person. Under these new laws, individuals can face a maximum penalty of 20 years imprisonment, and companies can be fined up to $18 million if they are found to be reckless or grossly negligent in their conduct, which breaches a work health and safety duty and leads to someone’s death.

The purpose of these penalties is to send a clear message that those who put workers’ lives at risk will be held accountable. The legislation aims to align South Australia with other jurisdictions that have already made industrial manslaughter a crime, including Queensland, Victoria, Western Australia, and the ACT. The introduction of this bill fulfils a key election commitment by the South Australian Government.

It’s important to note that the new laws do not impose any new duties that are not already owed under the current workplace laws. Instead, they ensure that when these duties are breached and result in someone’s death, the penalties reflect the severity of the crime.

The legislation follows a significant community consultation process involving unions, business groups, and work health and safety professionals. The draft bill underwent public consultation from November 2022 to February 2023, and feedback from industry stakeholders was taken into consideration during the drafting process.

Please note that the specific details and progress of the Work Health and Safety (Industrial Manslaughter) Amendment Bill can be found in the official sources provided, which include the South Australian Government’s website and relevant legislation documents

The Offence

An employer or officer would face a maximum penalty of 20 years in prison for a natural person or a fine of $18,000,000 for a body corporate under the proposed amendments.

WorkSafe ACT

Industrial manslaughter in the ACT is now an offence under the Work Health and Safety (OHS) Act, following the passing of the WHS Amendment Bill 2021 by the ACT Government on 5 August 2021.

WorkSafe ACT, the ACT’s workplace health and safety regulator, uses a strong enforcement approach to ensure compliance by PCBUs and Officers. Workplace deaths are avoidable tragedies, and PCBUs and Officers who are found to be negligent and noncompliant, particularly when workers’ lives are at stake, will face serious regulatory action.

This amendment is in response to recommendations made in the 2018 Boland Review of Work Health and Safety Laws and as well as the Federal Senate Inquiry into Industrial Deaths. Previously, industrial manslaughter in the ACT was prosecuted under the Crimes Act 1900. This legislative change incorporates the crime of industrial manslaughter into the Workplace Safety and Health Act.

The WHS Act’s industrial manslaughter provisions reflect the serious nature of this offence and aim to prevent future workplace fatalities. WorkSafe ACT applauds the ACT government’s commitment to improving workplace health and safety practices and developing a strong safety culture in our community. The inclusion of industrial manslaughter legislation in the Work Health and Safety Act is a step in the right direction.

The Offence

An industrial manslaughter conviction in the ACT now carries a maximum penalty or possible imprisonment of up to 20 years for individuals and a $16,500,000 fine for a body corporate.

WorkSafe NT

The Work Health and Safety (National Uniform Legislation) Amendment Act 2019, which incorporates an industrial manslaughter offence, commences on 1 February 2020. As of 1 February 2020, the Work Health and Safety (National Uniform Legislation) Amendment Act 2019, which includes an industrial manslaughter offence, goes into effect.

Previously, workers could face manslaughter charges under the Criminal Code Act if they violated a health and safety duty that resulted in a death. Corporate bodies can also be prosecuted, but not punished, because life imprisonment cannot be converted to a monetary penalty. The industrial manslaughter charge ensures that all businesses, no matter how large or small, face the same level of penalty if reckless or negligent behaviour results in a workplace fatality.

Industrial manslaughter will be charged only if all of the elements of the offence are proven.

A person commits the offence of industrial manslaughter if:

• the person has a health and safety duty; and

• a person is a person conducting a business or undertaking or an officer of a person conducting a business or undertaking; and

• the person intentionally engages in conduct; and

• the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed; and

• the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.

A charge of industrial manslaughter can only be brought after a death or conduct that resulted in death occurred. If convicted of industrial manslaughter, the maximum penalties apply:

• Life imprisonment for an individual

• For a body corporate 65,000 penalty units, $10,075,000 under 2019-20 penalty unit rate.

WorkSafe VIC

WorkSafe held an educational webinar about workplace manslaughter and what it means for Victorians ahead of the new legislation taking effect on 1 July 2020. A panel of WorkSafe experts debated whom the legislation applies to and what employers and employees must do to comply.

If you missed the event, you can watch the video to catch up.

The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) introduced the criminal offence of workplace manslaughter into the Occupational Health and Safety Act 2004 (Vic) (OHS Act), which took effect on 1 July 2020. Workplace manslaughter is an indictable offence with no statutory limitation period. It cannot be heard and determined summarily (in the Magistrates’ Court of Victoria).

The offence applies to negligent conduct by an employer or other duty holders, as defined below, or an officer of an organisation that breaches certain duties under the Occupational Health and Safety Act 2004 (OHS Act) and causes the death of another person who was owed the duty.

An employer or an officer of a relevant entity commits an offence under the OHS Act if:

• The person charged must be a corporation or an individual who is not an employee or volunteer, and they must have owed the victim a specific duty under the OHS Act.

• They breached their duty through negligent behaviour.

• The victim died as a result of the breach of duty.

• If the person charged is a natural person, they must have breached the duty owed consciously and voluntarily.

The Offence

The offence covers negligent conduct by an employer or other duty holders as defined below, or by an officer of an organisation, that violates certain duties under the Occupational Health and Safety Act 2004 (OHS Act) and results in the death of another person who was owed the duty. The workplace manslaughter provisions will not be retroactive. This means that only deaths occurring after 1 July 2020, will be taken into account.

The new law is intended to prevent workplace deaths, provide a stronger deterrent to duty holders to comply with their occupational health and safety obligations, and send a clear message that endangering people’s lives in the workplace will not be tolerated.

The amendments to the OHS Act are not intended to add new responsibilities; rather, they are intended to increase the severity of existing responsibilities under the OHS Act. They impose harsher penalties on existing OHS Act duties. Employers and duty-holders should pause to consider the risks associated with their business and what steps can be taken to mitigate those risks, as the law currently requires.

Who Can Be Prosecuted With Workplace Manslaughter?

Anyone with specific responsibilities under the OHS Act can prosecute workplace manslaughter. Organizations and self-employed individuals can be prosecuted for workplace manslaughter, as detailed below.

• an incorporated entity (company or corporation)

• incorporated and unincorporated associations

• statutory authorities

• trustee of a trust

• unincorporated entity (sole trader and partnerships between 2 individuals)

• government entities.

• Officers of body corporates, partnerships, and unincorporated bodies or associations may also be charged with the offence of workplace manslaughter if their organisation holds specified duties under the OHS Act.

Definition of an Officer

Officers define as individuals with the power and resources to improve workplace safety at the top levels of an organisation or a corporation. Unless the employee is also an officer of an organisation or a corporation, industrial manslaughter does not apply to volunteers or workers.

This includes the following:

• a director or secretary of a corporation

• a person:

• who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business; or

• who can affect significantly the entity’s financial standing; or

• by whose instructions or wishes the directors of a corporation are accustomed to act

• a partner in a partnership

• an office holder of an unincorporated association

Volunteers and Employees

Workplace manslaughter does not apply to volunteers or employees unless they are also officers of an organisation. However, an employee can still be prosecuted for violating existing OHS Act duties, such as the duty to:

• take reasonable precautions in the workplace for their health and safety, as well as the health and safety of others

• cooperating with their employer on actions taken by the employer to comply with OHS laws

• not interfere with or misuse anything provided at the workplace to support health, safety, and welfare on purpose or recklessly

• not engage in reckless behaviour that puts another person in a workplace in danger of serious injury

Your Duties of Care

When there is a violation of specified existing OHS Act duties, the offence of workplace manslaughter is committed. The OHS Act imposes no new responsibilities. Employers, officers, and others who have already met and continue to meet their existing OHS obligations are not liable for workplace manslaughter. The new laws significantly increase the penalties for serious breaches of those duties.

As an employer, you have a legal obligation to guarantee your employees’ health and safety. People who work in the business, such as those who develop, build, import, or supply equipment, have responsibilities. Your employees have a responsibility to take reasonable precautions to ensure their own and others’ health and safety.

Among the responsibilities are:

• companies have a responsibility to develop and maintain a safe and healthy working environment for their workers. Employer’s responsibility to monitor employee health and working conditions

• the responsibility of employers to ensure that the operation of their business does not threaten anyone other than their employees (including visitors, the public and other workers)

• the responsibility of self-employed individuals is to ensure that no one is exposed to OHS risks as a result of their work

• the responsibility of those in charge of or in charge of a workplace to ensure that the workplace, as well as the means of accessing and exiting it, are safe

• designers’ responsibility to guarantee that plants, buildings, and structures utilised as workplaces are constructed securely

• the responsibility of manufacturers  and suppliers is to guarantee that plants and chemicals are prepared safely safe manner and are safe to use

• a person’s responsibility not to participate in irresponsible behaviour that puts another person at work in danger of serious injury

Each of these duties requires the relevant duty-holder to meet the duty ‘so far as reasonably practicable.

What is Considered “Negligent Conduct”?

Under workplace industrial manslaughter, conduct will be considered ‘negligent’ if it involves:

• a great falling short of the standard of care that a reasonable person would have taken in the circumstances, and

• a high risk of death, serious injury or serious illness

Negligent conduct also includes a failure to act (an ‘omission’), for example, it may include when a person:

• does not adequately manage, control or supervise its employees, or

• does not take reasonable action to fix a dangerous situation, where failing to do so causes a high risk of death, serious injury or serious illness

The victim’s death must have been caused by the organisation or person charged with workplace manslaughter actions.

The existing common law causation test will be used. The test is based on the existing common law test for criminal negligence in Victoria and is an appropriately high standard given the new offence’s severe penalties. This means that the charged person’s actions or omissions had to have contributed significantly to the death or been a substantial and operating cause of it. It is not necessary to show that the accused was the sole cause of death. A reasonable person would consider the behaviour to be a cause of death.

Investigation and Legal Proceedings

WorkSafe, as with other alleged OHS Act violations, will lead investigations into potential workplace manslaughter offences. WorkSafe and Victoria Police will collaborate following a workplace fatality to ensure that all evidence is preserved and the worksite is safe and free of hazards to the health of those present or expected to attend. WorkSafe will handle a workplace manslaughter case until the accused is committed to standing trial, according to current procedures. The Office of Public Prosecutions will then bring the case to trial. Manslaughter in the workplace is a felony with no statute of limitations. It cannot be heard and decided summarily (in Victoria’s Magistrates’ Court).

Penalties

If convicted of workplace manslaughter, the following penalties apply (as of 1 July 2020):

• a maximum of 25 years imprisonment for individuals, and

• a maximum fine of $16.5 million for body corporates

WorkSafe WA

The WA Industrial manslaughter offence is relatively new in Western Australia. Industrial manslaughter in a workplace was considered early in 2021 in the WorkSafe prosecution of a company director under the Occupational Health and Safety Act 1984 and included in the Work Health and Safety Act 2020. The WHS Act is available on the Western Australian Legislation website, which is hosted by the Parliamentary Counsel’s Office. 

The Work Health and Safety Act 2020 (WA) (WHS Act) was signed into law on November 10, 2020. The new WHS Act will replace the current Occupational Safety and Health Act 1984 (WA), but it will not go into effect until it is proclaimed. The new WHS Act creates two new criminal offences of industrial manslaughter for PCBUs and senior officers.

The inclusion of industrial manslaughter provisions in the WHS Act responds to significant public concerns expressed by families of workers killed in workplace incidents, as well as the recommendations of two recent Federal reviews — the Review of the Model WHS laws: Final Report conducted by Ms Marie Boland (Boland Report) and the Federal Senate Inquiry: They never returned – the Australian framework for the prevention, investigation, and prosecution of industrial deaths. The inclusion of industrial manslaughter provisions in the WHS Act is intended to have a strong deterrent effect and fully aligns with community expectations that every worker has the right to return home safely after a day at work. The Government has enacted these provisions to ensure that workplace deaths caused by the actions of PCBUs and their officers are met with severe penalties, including imprisonment.

Industrial manslaughter can only be charged against PCBUs and their officers. A person is an officer of a body corporate if they are officers under the Corporations Act of 2001. (Commonwealth). This is typically a person who makes or participates in making decisions that affect the entirety or a significant portion of the entity’s business or who can significantly affect the entity’s financial standing. The Chief Executive Officer, Chief Financial Officer, or head of a large Division of a corporation are likely to be classified as ‘officers.’ Having the title “officer” does not make you an “officer” for the WHS Act unless you meet the definition in the Corporations Act 2001.

A PCBU or an officer of a PCBU is guilty of industrial manslaughter if:

As a person conducting a business or undertaking, the person has a health and safety duty; and the person engages in conduct that causes the death of an individual; and the conduct constitutes a breach of the person’s health and safety duty, and the person engages in the conduct knowing that it is likely to result in the death or serious harm of an individual, but disregarding that likelihood.

The maximum penalty is 20 years in prison and a $5 million fine for an individual or a $10 million fine for a corporation. A corporate officer who consents to or secretly permits, or caused by neglect, such conduct in a firm faces the same penalty, even if the officer is aware of the risk of death or serious harm and disregards it. Volunteers are exempt from the offence.

Reference & External Link: WorkSafe VIC | WorkSafe ACT | WorkSafe QLD | WorkSafe NT | WorkSafe WA

Disclaimer:

The information in this post is strictly for informational and educational purposes only and should not be construed as legal advice. It is not intended to express specific opinions about specific cases. Before acting on any of the issues discussed in this post, seek additional advice. The information provided should not be relied on for any purpose other than to assist you to understand how Workers’ Compensation insurance works. It is for illustrative purposes only and My WorkCover Solutions Pty Ltd does not accept liability for any loss or damage suffered by any person resulting in any way from the use of or reliance on, the information provided. The information in this article is believed to be correct as of the date of publication. However, changes in the applicable laws may have an impact on the accuracy of the material. This article contains general information that is not tailored to any specific person’s situation. This publication may contain information that relates to the regulation of Workers’ Compensation insurance in your State or Territory. To ensure you comply with your legal obligations, we would recommend you refer to the appropriate legislation as currently in force in the State or Territory you conduct your business. You can find up-to-date legislation by visiting each state’s WorkCover Authority website, alternatively, contact myWorkCover for updated information.

Scan our QR Code to connect!