By Dani Salinger & Simon Saha
Industrial manslaughter is primarily associated with the construction industry as the risk to the physical safety of employees is often higher. Simply put, blue-collar employees face greater risks to their physical safety compared to white-collar employees – the risk to life is larger given the nature of work carried out and our laws are still catching up.
Australia’s industrial manslaughter laws are intricate and differ in each state and territory; changing social expectations influence their enforcement, and their inconsistency may, in part, sometimes be attributable to the particular political flavour of the day. In opposition, the construction industry in Australia is far from inconsistent. According to the Australian Industry and Skills Committee (AISC) this industry generates over $360 billion in revenue annually and produces around nine per cent of the country’s Gross Domestic Product (GDP). With a projected growth rate of 2.4 per cent over the next five years, it isn’t surprising that employment rates in this industry are only growing.
In this article, we answer critical questions about Australian industrial manslaughter laws, associated penalties, and their particular differences across jurisdictions.
The basic duty of care – what is it?
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 are often used as the foundations for legislation passed in other countries. This is because our 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’ and why was it introduced?
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.
Industrial manslaughter is broadly understood as 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.
In simpler terms, 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 breached the duty owed by 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.
Industrial manslaughter broken down into states and territories
Businesses in each state and territory are bound by different pieces of legislation that define industrial manslaughter and their legal obligations to their employees. It is critical that businesses of every shape and size understand their obligations and what the penalties are for not complying with the law. Below you will find how each Act relevant to individual states and territories define industrial manslaughter.
Australian Capital Territory
The Crimes (Industrial Manslaughter) Amendment Act 2002 (ACT) introduced the separate offence of industrial manslaughter into the Crimes Act 1900 (ACT), taking effect from 1 March 2004. The result was the establishment of two criminal offences of industrial manslaughter for employers and senior officers respectively.
Under the Crimes Act 1900 (ACT) an employer or senior officer commits an offence if:
- there exists a duty to avoid or prevent danger to the life, safety or health of a worker;
- a worker dies in the course of employment by, or providing services to, or in relation to, the employer; or is injured and later dies;
- the employer’s or senior officer’s conduct caused the death of the worker; and
- the senior officer or employer had been reckless about causing serious harm to the worker.
The maximum penalty for the offence is $320,000 for individuals, and/or a maximum of 20 years imprisonment, and $1,620,000 for a body corporate. Additionally, courts may order a corporation to publicise details regarding the offence, the incident and any penalties imposed, deliberately threatening an entity’s reputation and, hypothetical goodwill.
New South Wales
Whilst there is no specific legislation presently surrounding industrial manslaughter in NSW, amendments to the Work Health and Safety Act 2011 (NSW) have increased its penalties and offences to include gross negligence, an often cited and overwhelming contributing factor to the incidence of ‘industrial manslaughter’. Further, the explanatory memorandum outlines that the death of a person at work may constitute manslaughter under the Crimes Act 1990 (NSW), punishable by imprisonment for 25 years.
Recently though, on 5 May 2021, the Berejiklian Government introduced the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 (NSW) which would see the inclusion of industrial manslaughter as a separate offence, in a further step towards creating a federally harmonised 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
- the death of a worker or other person occurs at the workplace, or is injured at the workplace and later dies, whether or not in the course of 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 about causing the death by their conduct.
In terms of penalties, a PCBU or a senior officer could be liable for a maximum term of 25 years’ imprisonment for an individual, or $11,000,000 for a body corporate.
FCB Group will be closely monitoring the progress of this legislation and will provide updates when they are available.
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) taking, recent, effect from 1 July 2020.
Under the OHS Act an employer or an officer of a relevant entity commits an offence if:
- there is a duty not to recklessly endanger persons at workplaces and to ensure so far as is reasonably practicable that the workplace, and the means of entering and leaving it are safe and without risks to health;
- the employer or officer is negligent;
- the employer or officer’s conduct constitutes a breach of the duties owed to another person; and
- the employer or officer’s conduct causes the death of that other person.
Importantly, negligent conduct is defined as; a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in and has a high risk of death, serious injury or serious illnesses.
The maximum penalty is 25 years imprisonment for a natural person and a fine of up to $18,174,000 for a body corporate.
The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) introduced industrial manslaughter as a separate offence into the Work Health and Safety Act 2011 (Qld) (WHS Act) taking effect from 23 October 2017. The WHS Act now establishes two criminal offences of industrial manslaughter for PCBU’s and senior officers respectively, where:
- there is a primary duty of care to ensure, so far as reasonably practicable, the health and safety of the worker;
- the worker dies in the course of carrying out work or is injured and later dies; and
- the PCBU’s or senior officer’s conduct caused the death of the worker.; and
- the PCBU or senior officer was negligent about causing the death of the worker by their conduct.
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.
The Work Health and Safety Act 2020 (WA) (WHS Act) received assent on 10 November 2020. The new WHS Act will replace the current Occupational Safety and Health Act 1984 (WA) but will not commence until proclamation. The new WHS Act establishes two criminal offences of industrial manslaughter for PCBU’s and senior officers respectively.
A PCBU or officer of the PCBU will commit an offence of industrial manslaughter if:
- there is a duty not to recklessly endanger workers at workplaces and to ensure so far as is reasonably practicable that the health and safety of other persons is not put at risk from work carried out by the PCBU;
- the person has a health and safety duty as a person conducting a business or undertaking; and
- the person engages in conduct that causes the death of an individual; and
- the conduct constitutes a failure to comply with the person’s health and safety duty; and
- the person engages in the conduct knowing that the conduct is likely to cause the death of, or serious harm to, an individual and in disregard of that likelihood.
The maximum penalty for an individual is imprisonment for 20 years and a fine of up to $5,000,000. For a body corporate, a fine of up to $10 000 000.
On 23 September 2020, the South Australian Greens party reintroduced the Work Health and Safety (Industrial Manslaughter) Amendment Bill (SA) to create a separate criminal offence of industrial manslaughter.
Under the proposed legislation an employer or officer will commit an offence if:
- the employer owes an employee a basic duty of care; and
- the employer or officer breaches that duty; and
- the employer or officer knew, or ought reasonably to have known, or was recklessly indifferent as to whether the act or omission constituting the breach would create substantial risk of serious harm to a person; and
- the breach causes the death of a person (whether or not the person was an employee of the employer and whether or not the death occurred in a workplace).
Under the proposed amendments, an employer or officer would be liable for a maximum penalty of 20 years’ imprisonment for a natural person, or a fine of $13,000,000 for a body corporate.
The Bill is current progressing through the Legislative Council of the South Australian government with its outcome likely to be determined later this year.
The Work Health and Safety (National Uniform Legislation) Amendment Act 2019 (NT) introduced the separate offence of industrial manslaughter into Part 2 of the Work Health and Safety (National Uniform Legislation Act 2011 (NT) taking effect from 1 February 2020. The amendment to the Act establishes a criminal offence of industrial manslaughter.
Under the Work Health and Safety (National Uniform Legislation Act 2011 (NT), a person commits the offence of industrial manslaughter if:
- the person owes another a health and safety obligation;
- the 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 that 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.
The maximum penalty for an individual is imprisonment for life, or for a body corporate a fine up to $10,205,000.
Industrial manslaughter is not currently an offence in Tasmania.
The Unions of Tasmania have called for the State Government to implement the offence of industrial manslaughter, however, there is no further update regarding its implementation.
The Work Health and Safety Act 2012 (Tas) does, however, establish category 1 offences that include reckless conduct that exposes an individual (to whom a duty is owed) to a risk of death or serious injury or illness.
The maximum penalty for category 1 offences are as follows:
- $300,000 and/or 5 years’ imprisonment for individual other than as a PCBU or as an officer;
- $600,000 and/or 5 years’ imprisonment for PCBU’s or officers; and
- $3,000,000 for a body corporate.
Given risks to both businesses and individual life, it is incumbent on employers to ensure they are protecting their employees and meeting their legal obligations regarding the proper exercise of their duty of care, and satisfaction of positive obligations concerning workplace safety. The industrial manslaughter laws are severe, and justifiably so.
If you have any queries or concerns about your organisation’s compliance or risk exposure, please feel free to contact the team at HR Assured.
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Dani Salinger is a Senior Associate at FCB Workplace Law. She specialises in employment law litigation, together with industrial relations strategy and disputation. Dani provides complex advice to a range of SME and ASX listed clients on a daily basis and volunteers as a Committee Member for Australian Lawyers for Human Rights. Dani has two years in a row been nominated for the Women in Law Awards.
Simon Saha is a passionate Workplace Relations Consultant at FCB Group (HR Assured’s parent company). Simon provides in-depth advice on a range of employment relations matters with a particular interest in underpayments liabilities, models of engagement and compliance audits.