Breaking Down Industrial Manslaughter Laws in Australia: A Crucial Update for 2024.

As of 1 July 2024, Australia has seen significant expansions in the enforcement of industrial manslaughter laws, introducing stringent criminal penalties for corporations and officers who commit this grave offence. This update delves into the spread of these laws across the country and their implications for businesses.

A Nationwide Legislative Shift

The recent introduction of industrial manslaughter offences in South Australia and for Commonwealth public workers stems from a key recommendation of the Boland Review. With these changes, all Australian States and Territories, except for Tasmania, have criminalised industrial manslaughter. New South Wales has now enacted these laws, enforcing the highest penalties in the nation, with individuals facing up to 25 years imprisonment and corporations fines up to $20 million for gross negligence causing a fatality. Tasmania is not far behind, with a bill already passed in the lower house and expected to pass in the upper house. This development signifies a nationwide trend towards harsher penalties for workplace fatalities, as all Australian jurisdictions align with the Boland Review's recommendations.

Understanding Industrial Manslaughter

Industrial manslaughter is defined as the unlawful killing of a worker by a person conducting a business or undertaking (PCBU) or an officer of the PCBU. The offence typically involves a breach of duty of care that results in a worker's death due to negligent or reckless conduct.

In 2023, Australia witnessed 175 workplace fatalities, with 64% of these occurring in three key industries:

• Agriculture, forestry, and fishing
• Construction
• Transport, postal, and warehousing

These statistics highlight the critical need for stringent WHS measures to protect workers in high-risk sectors.

The Legal Framework and Its Impact

Employers in Australia have a legal duty to ensure a safe working environment. The push for harmonised industrial manslaughter laws reflects a national commitment to enforcing this duty with severe penalties, including heavy fines and imprisonment for individuals who fail to uphold their responsibilities.

While the core elements of the offence are consistent across jurisdictions - requiring that the PCBU or officer's conduct breaches their WHS duty and causes a worker's death - the specific legal tests for negligence or recklessness vary. Each State and Territory applies different criteria to determine fault, underscoring the importance for businesses to understand and comply with their local regulations.

Penalties for industrial manslaughter differ across Australian States and Territories, generally involving hefty fines for corporations and extended prison sentences and/or fines for individuals.

Can Penalties be Insured Against?

In states like Western Australia, Victoria, and New South Wales, laws specifically prohibit insurance coverage or indemnity for WHS penalties. Therefore, while employers might be able to insure against legal defence costs, they cannot secure indemnity for the substantial fines associated with industrial manslaughter offences.

Enforcement of Industrial Manslaughter Penalties: Case Studies

LH Holding Management Pty Ltd (Victoria)

Incident Details: In October 2021, a tragic forklift accident led to the death of a 25-year-old sub-contractor. The company's sole director, Laith Hanna, was found negligent. Hanna had been operating a forklift with a raised load on a sloping driveway, resulting in the forklift tipping over and fatally injuring the sub-contractor. The Supreme Court of Victoria determined that Hanna's failure to ensure the safe operation of the forklift constituted a breach of his duty to the worker.

Penalties: The company was fined A$1,300,000 for workplace manslaughter. Laith Hanna received a two-year Community Corrections Order for his role in the incident.

Brisbane Auto Recycling Pty Ltd (Queensland)

Incident Details: In May 2019, Barry Willis, an employee at Brisbane Auto Recycling, was fatally injured when he was crushed by a reversing forklift operated by an inexperienced worker. An investigation by Workplace Health and Safety Queensland revealed that the company had failed to implement adequate safety measures and was in violation of multiple WHS regulations.

Penalties: The District Court of Queensland convicted the company of industrial manslaughter and imposed a fine of A$3 million. Additionally, both directors were sentenced to 10 months of suspended imprisonment.

MT Sheds (WA) Pty Ltd (Western Australia)

Incident Details: For the first time in Western Australia, a company director has been sentenced to jail following a workplace fatality. In 2020, two workers were installing roof sheets on a large machinery shed on a farm without appropriate safety measures. A strong wind or "willy-willy" lifted a single roof sheet, causing both employees to fall from significant heights. One worker fell approximately nine meters, suffering fatal injuries, while the other fell seven meters, sustaining multiple fractures.

Penalties: Mr. W, the director of MT Sheds (WA) Pty Ltd, pleaded guilty to gross negligence leading to the death of the 25-year-old worker and serious injury to another. He was sentenced to two years and two months in jail, the longest term of imprisonment ever imposed in Australia for a work health and safety offence. Additionally, the company was fined $550,000.

The introduction of industrial manslaughter laws across Australian jurisdictions highlights the critical importance of compliance with WHS obligations. However, the small business community has yet to fully grasp these significant legal changes, underscoring the need for increased awareness and proactive safety measures in workplaces and boardrooms.

Key Takeaways to Avoid Industrial Manslaughter Penalties

To mitigate the risks of imprisonment and heavy fines - which may not be insurable - employers must prioritize comprehensive safety systems and strict compliance with WHS laws. It is essential for organizational officers to understand the critical importance of safety and their proactive duty in adhering to WHS obligations to prevent worker fatalities and avoid personal repercussions.

Recommendations for Employers:

1. Foster an organizational culture of safety by conducting regular cultural maturity assessments.
2. Ensure compliance with WHS laws through periodic legal reviews and site inspections from external third-party experts.
3. Conduct gap analysis of WHS management systems to identify and rectify any deficiencies.
4. Implement critical control management to proactively identify, monitor, and mitigate high-risk activities in the workplace.

Get in Touch

This update offers a high-level overview of the industrial manslaughter offence as it is being implemented across Australia. For more detailed information or advice on how your business can proactively mitigate the risk of exposure to industrial manslaughter charges, please contact me. Ensuring compliance with WHS duties is not only a legal requirement but also a moral obligation to protect the lives and wellbeing of your employees.

#industrialmanslaughter #WHS #agriculture #forestry #fishing #construction #transport #postal #warehousing #mining #energy