SA industrial manslaughter legislation has passed, along with amendments to to increase penalties to $18m for ‘gross negligence’ or ‘recklessness to the risk’ of death, where the negligence or recklessness is found to ‘substantially contribute’ to the death. This new law includes provision for a business to be held responsible for the acts of mental illness that lead to a persons death, if that mental illness was caused or exacerbated by the workplace.
Industrial Manslaughter laws are currently the purview of the States, with the Federal Government indicating that it will not seek to implement national industrial manslaughter provisions, rather it will support the States in implementation of their own provisions.
At this point most States have chosen to implement legislation creating Industrial Manslaughter offences.
In the new SA legislation individuals face 20 years in prison and businesses face fines of $18 million for reckless or grossly negligent breaches that result in the death of another person.
In releasing the legislation SA Attorney-General Kyam Maher noted, “Industrial manslaughter laws recognise that, while tragic workplace incidents do occur from time to time, it’s not an accident when people deliberately cut corners and place workers’ lives at risk,”.
“Importantly, this legislation will bring South Australia into line with most other states that already have industrial manslaughter laws,” he said.
In the ACT the offence is contained in the WHS legislation. A PCBU commits industrial manslaughter if they engage in conduct that breaches a WHS duty that results in a persons death. The ACT legislation comes with jail time (of up to 20 years) and fines of up to $10M for a business.
In QLD the offence is contained in the WHS legislation. A PCBU or senior officer is determined to have negligently caused the death of a worker if;
- the worker dies are a result of carrying out work for the business (including on a break), and
- the conduct or inaction of the PCBU or an officer of the business results in or substantially contributes to the death, and
- the conduct or inaction of the PCUB or an officer of the business departs so far from the standard of care required as to be negligence.
In QLD the offence carries a jail term of up to 20 years and up to $10M in fines.
The QLD is one of the first industrial manslaughter laws to be tested, with the conviction of a Director of a Gympie small business in 2022. The Director had enlisted is friend to assist him at the workplace in unloading a generator. The Director was using the forklift, without a licence, when he overloaded it with the generator which then tipped and fell on his friend crushing him to death. The Directors friend was not an employee, but as he was conducting work tasks at the workplace at the direction of the business he was deemed to be a worker for the purposes of the Act and the Director was sentenced to 18 months in jail after being found guilty of industrial manslaughter.
In VIC the offence of industrial manslaughter has been folded into the OHS Act. The offence is committed by a PCBU and/or their officers, when there is a negligent death of a worker or a member of the public. The VIC legislation carries jail time of up to 25 years and penalties of up to $16.5M.
In late 2022 the VIC Act was used to charge its first offender of industrial manslaughter, when a Director of a stonemasonry business was charged following the death of a worker crushed by a forklift. In this instance the worker was not employed by the business, but rather was a subcontractor on site. This case has not yet concluded with the next court date set for 2 February 2023.
In WA the industrial manslaughter provisions were folded into the new WHS Act passed in 2020. The offence of industrial manslaughter arises when a duty holder (including officers) fails to comply with their health and safety duty and engages in conduct that causes the death of an individual, in the knowledge that the conduct was likely to result in death or serious harm and in disregard of that likelihood. The WA legislation carries a jail time of 20 years and fines of up to $5M for an individual and $10M for the business.
In the NT the offence of industrial manslaughter was folded into changes to the WHS Act, moving the provision from the Crimes Act where individuals could be jailed for offences but businesses could not, to now allow for the punishment of both individuals and businesses. A person or business commits the offence of industrial manslaughter if;
- There is a health and safety duty, and
- The person is a PCBU or officer, and
- The person intentionally engages in conduct, and
- The conduct breaches the duty, and
- The person is reckless or negligent about the conduct breaching the duty, and
- The death of the individual is caused by the conduct.
The NT legislation provides for a maximum jail time of life imprisonment for individuals as well as penalties of up to $10M for businesses.
There are currently no industrial manslaughter offence provisions in NSW (though there has been an indication that one will be introduced in early 2024) or TAS though there have been previous Bills presented in the past to implement them.
Learnings for all businesses
“The existence of industrial manslaughter offences is a clear sign from regulators that officers of businesses are personally responsible for the safe operation of their businesses and for the safety of the workers (and public) and that in the event of the actions (or inactions) of the business resulting in the death of a person, the law will respond most harshly” explains ACAPMAs Elisha Radwanowski.
“This higher penalty does not change the responsibility of the business. All businesses have the responsibility to keep workers and the public safe. It is however a clear call from the regulators that negligence will not be tolerated. ‘I didn’t know I had to do that’ or ‘I thought everyone did it this way’ is simply not good enough. In all of the different provisions the common theme is that the business must be active in understanding and managing risks and must ensure that they are keeping up with not only the best practice options for controls, but also with implementing and communicating controls to employees” continued Elisha.
“Safety cannot ever be set and forget. Peoples lives are at stake, and the industrial manslaughter provisions have been brought in to drive that point home to all businesses and their officers, to further encourage safety outcomes” concluded Elisha.
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Elisha Radwanowski BCom(HRM&IR)