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WHS and industrial manslaughter changes

WHS and industrial manslaughter changes

In this article, Anton Duc looks at an important question concerning Australia’s industrial manslaughter laws and penalties and an update on current litigation.

The basic duty of care

All employees have a duty of care and lawful obligation to ensure a safe working environment for all employees. Australian workplace safety laws are stringent and detailed in nature. WHS laws encourage positive employer obligations and ensure that there is little to no room for misconduct or malfeasance to go unpunished.

What is ‘industrial manslaughter’

In recent years, there has been a greater push to introduce new criminal offences for industrial manslaughter. The intention is to create a federally harmonised system around death in the workplace. These changes extend the existing duty of care to be more specific and targeted to workplace incidents. Unions have pushed for manslaughter laws so that, where death occurs, those responsible do jail time, not just pay fines.

Industrial manslaughter is an offence where 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 would create a substantial risk of serious harm to a person. To establish industrial manslaughter, the breach of duties must then cause the death of the person to whom the obligation is owed.

Industrial manslaughter can be defined as a crime where the action or inaction of an employer results in the death of an employee.

What constitutes industrial manslaughter?

The offence of 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;
  • the victim must have been owed a specific duty of care under the relevant state or territory legislation;
  • those charged must have breached the duty owed through reckless and/or negligent conduct;
  • the breach of the duty caused the death of the victim; and
  • if the person charged is a natural person, they must have acted consciously and voluntarily at the time of the breach.

In May 2021, a Western Australian employer became the first to be sentenced to jail time under WA’s new workplace health and safety laws. Mr W, a director of MT Sheds (WA) Pty Ltd, was sentenced to two years and two months in jail following the death of a young worker in 2020. The state statutory authority claimed it was the longest term of imprisonment ever imposed in Australia for a work health and safety offence. In addition to the company director’s imprisonment, the company was fined $550,000.

The workplace fatality arose from two workers installing roof sheets on a large machinery shed that they were building on a farm without appropriate safety control measures in place. The subsequent investigation revealed that either a strong wind or willy-wally’ lifted a single roof sheet from the nearby stack of sheets, causing both employees to fall from a significant height.

WorkSafe WA Commissioner Darren Kavanaugh commented that the deceased employee “fell approximately nine metres from the apex of the roof, suffering fatal injuries, while (the co-worker) fell around seven metres from the roof’s edge near the gutter line, suffering multiple fractures of the pelvis, hip, wrist, and ribs”.

In regard to the company, Commissioner Kavanagh stated “they completely failed in every sense to provide a safe workplace for their employees, and as a consequence, a young man lost his life, and a family lost a loved one.”

Queensland first introduced industrial manslaughter penalties in 2017, the second to do so after the Australian Capital Territory in 2004. Victoria and the Northern Territory’s laws came into effect last year, and Western Australia’s industrial manslaughter provisions will kick in next year.

Queensland commenced its first industrial manslaughter case against an individual in 2020, which resulted in a $3 million fine. The case was brought forward by the independent Work Health and Safety Prosecutor after an employee’s death on site following a forklift incident in 2019. There are currently four prosecutions being pursued in that state.

The New South Wales parliament is currently debating amending the Work Health and Safety Act 2011 to make industrial manslaughter an offence.

Industrial manslaughter is primarily associated with the construction and mining industry as the risk to the physical safety of employees is often higher. Blue-collar employees face greater risks to their physical safety compared to white-collar employees; however, retail and other workers face different dangers including abuse and assault by customers.

Penalties

Penalties vary in the states and territories. An industrial manslaughter conviction in the ACT now carries a maximum penalty or possible imprisonment of up to 20 years for individuals and a $16.5 million penalty for corporations. The maximum penalty for an individual is 20 years imprisonment and a $5 million fine. 
The maximum penalty for a company is a $10 million fine.


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