Industrial manslaughter laws have now been enacted in all states and territories resulting in higher stakes than ever for employers breaching safety laws.
On 11 September 2024 the Workplace Health and Safety Bill 2024 was passed by the lower house of the Tasmanian Parliament representing the last jurisdiction in Australia to criminalise workplace deaths. Although there is a lack of consistency in language, standards and coverage in relation to Industrial Manslaughter offences across Australia, essentially an individual or person conducting a business or undertaking (a PBCU) and its officers commits industrial manslaughter if:
- they have a health and safety duty under the Work Health and Safety Act; and
- they engage in conduct that breaches that duty; and
- the conduct causes the death of an individual to whom that duty is owed, and
- the person engages in the conduct with gross negligence or is reckless as to the risk to an individual of death or serious injury or illness.
To be found liable, each of the above criteria must be met, but for the purposes of “conduct” an employer will be liable if their actions substantially contribute to the death of the worker.
The inconsistencies in Industrial Manslaughter legislation across the country has resulted in different penalties for a PBCU and its officers breaching the legislation in the different States and Territories. Fines for a corporate body range from $10 million in WA to $20 million in NSW and 20 years imprisonment for individuals in QLD, WA SA and the ACT to life imprisonment in the NT. However, the key message arising from this law reform is that the stakes for breaches of safety laws across Australia are now substantially heightened.
For most businesses, this should have no real impact on their approach to safety, rather the penalties for not complying with existing obligations becomes much harsher. So, what does all this mean for you and your business? Let’s look to some recent decisions:
In R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113, the company was convicted and fined $3 million and two directors were convicted and sentenced to 10 months’ imprisonment, with a suspended sentence, after a worker was killed by a reversing forklift truck driven by an unlicensed driver with no traffic management safety systems in place.
In the 2022 case, R v Jeffrey Owens [2022] QDCSR 168, an individual was convicted and sentenced to five years prison (suspended after 18 months) after he negligently caused the death of a worker who was crushed by a generator that fell on him from a moving forklift.
In February 2024, LH Holding Management Pty Ltd was convicted and fined $1.3 million and the sole director was also convicted, placed on a two-year Community Corrections Order to complete 200 hours of unpaid community work and ordered to complete a course in forklift operation following a workplace incident where the director was operating a loaded forklift which tipped over and landed on a 25-year old subcontractor, causing the worker’s death.
Most workplace fatalities occur in agriculture, forestry, fishing, construction, transport, postal and warehousing, but not exclusively. What are the takeaways for you? All businesses and organisations:
- Need an adequate risk management system in place that minimises risk, identifies dangers, requires reporting and responds in crisis situations. It must be a system that is functional, practical, understood and used by all levels of management and staff.
- Must regularly review, audit, and test safety systems and protocols to ensure they meet the latest industry standards.
- Should implement WHS practices such as training, traffic management plans, effective communications systems, signage, barriers, identification of visibility issues. They should require appropriate licences and maintain and operate plant and equipment in accordance with the manufacturer’s instructions and operations manuals; and
- Consistently supervise their workforce.
The size, industry or complexity of an organisation do not play a role in how Industrial Manslaughter legislation is applied. Severe penalties have been imposed on both large organisations as well as sole traders. Further, insurance policies may not cover you. It is a general principle that insurance is not available where the loss is uninsurable at law (whether the policy provides such a term or not). This would include any policy that may appear to indemnify a person or entity against criminal liability.
In short, you need to ensure that you are complying with all your work health and safety obligations and taking all reasonable precautions to prevent deaths in the workplace, or you could face serious consequences.
