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Industrial Manslaughter Laws: Adoption, Progress, and Emerging Themes in Australia

On 28 February 2023, the Work Health and Safety Ministers' Meeting was held where ministers responsible for work health and safety (WHS) from the Commonwealth and each state and territory convened to discuss and advance WHS issues of national importance. Among other matters Industrial Manslaughter laws were discussed; and the ministers agreed to adopt industrial manslaughter into the model WHS laws.

03/27/2023 · 8 minute read

On 28 February 2023, the Work Health and Safety Ministers' Meeting was held where ministers responsible for work health and safety (WHS) from the Commonwealth and each state and territory convened to discuss and advance WHS issues of national importance.

Among other matters Industrial Manslaughter laws were discussed; and the ministers agreed to adopt industrial manslaughter into the model WHS laws, with a model penalty of $18 million for a body corporate and 20 years’ imprisonment for an individual. The Commonwealth Minister indicated the Australian Government’s intention to consult on an industrial manslaughter offence under Commonwealth WHS laws.

At a glance:

  • All Australian states and territories have now enacted industrial manslaughter laws with the exception of South Australia and Tasmania.
  • South Australia is projected to adopt the changes and are considering explicitly including suicide related deaths.
  • Northern Territory’s first industrial manslaughter charge occurred on 1 March 2023, following the death of a building construction worker.
  • At the Work Health and Safety Ministers’ Meeting in February 2023, the ministers agreed to adopt industrial manslaughter into the Model WHS Laws. Other matters discussed included ongoing discussions on a national ban on silica and progress towards effective measures of management of psychosocial risk nationally.
  • Key themes emerge from Australia's four industrial manslaughter cases, including high-risk activities - mobile plant and equipment and working from heights. 

As reported in Safe Work Australia’s Key WHS statistics Australia 2022, 169 Australian employees lost their life at their place of work in 20211. In 2020, Safe Work Australia undertook a comprehensive review of Australia’s model Workplace Health and Safety laws and made 34 recommendations, including the introduction of industrial manslaughter2.

Since the release of the report, many of the 34 recommendations have seen significant progress, including the widespread adoption of industrial manslaughter laws across the country

What is industrial manslaughter?

Manslaughter is the unlawful killing of another human being, and each Australian State defines it slightly differently. Industrial manslaughter, however, allows both a company officer (personally) and corporation to be held liable for the death of a person caused by that corporation’s employees within the scope of their work.

Northern Territory's first industrial manslaughter charge

On 1 March 2023, news broke that NT WorkSafe has charged a building contractor with industrial manslaughter following the death of a worker in the Darwin suburb of Bayview. The contractor, has been charged with one count of industrial manslaughter under section 34B of the Work Health and Safety (National Uniform Legislation) Act 2011.

According to NT WorkSafe, the 60-year-old worker fell approximately 3.2 meters through an unguarded void on 8 April 2020 while moving cabinets into position for installation. The contractor allegedly failed in his primary duty of care under section 19(1)(b) by recklessly ignoring repeated warnings from subcontractors about the risk of falls from height through voids on the upper floor of the two-story residential construction site.

If found guilty, the contractor could face a maximum penalty of life in prison. This is the first industrial manslaughter charge in the Northern Territory, and comes amid a national push to increase accountability for workplace deaths.

South Australia Industrial Manslaughter Amendment Bill 2022

Whilst Tasmania are yet to announce any plans to introduce the laws, South Australia are currently reviewing commentary from a consultation period on the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2022 and are expected to enact the laws this year.

Key elements of the SA Bill include:

  • The Bill includes an offence for reckless or grossly negligent conduct that breaches work health and safety duties and results in a person's death.
  • The maximum penalty is 20 years imprisonment for individuals and $15 million for body corporates, with a statutory definition of gross negligence to assist in educating duty holders.
  • The offence applies to Persons Conducting a Business or Undertaking and officers, recognizing that responsibility for breaches can occur at different levels of management.
  • Industrial manslaughter offences are not subject to a 2-year statute of limitations and can be investigated by SafeWork SA and tried in the South Australian Employment Court.
  • An alternative verdict of guilt for a lower tier offence will be available if the person is not found guilty of industrial manslaughter.

There has also been mounting pressure for the explicit inclusion of ‘suicide’ in South Australia’s Amendment Bill, following industry, union and public consultation. This will be a notable difference in the application of the laws and may have a ripple effect on other states and territories around Australia.

Common themes emerge in Australia's four industrial manslaughter cases

So far, only four charges have been laid for industrial manslaughter across Australia, with two in Brisbane, one in Victoria and as of 1 March 2023 - one in Northern Territory. As many jurisdictions have recently introduced these laws, now is an opportune time to examine some common themes and learnings from these cases.

In all three cases to date, there were no safety systems in place at the workplace, and forklifts were involved in each worker's death. The business directors charged were either directly involved or close to the work being undertaken at the time of the incident. Notably, all of the prosecutions involved small to medium-sized enterprises (SMEs).

Another common theme was that the operators of mobile plant did not have a High-Risk Work License (HRWL), although this has not yet been confirmed for the most recent Victorian case. These findings highlight the importance of having appropriate safety systems and training and qualifications in place to prevent workplace incidents, especially for SMEs where resources may be limited.

Clear focus areas for Australian businesses

As of 16 February 2023, 16 Australian workers have already lost their lives at work this year, with several more reported since then. The Safe Work Australia priority industries, including construction, transport, postal and warehousing, manufacturing, and agriculture, forestry and fishing, continue to be leading industries in work-related deaths.

The incidents leading to these deaths often involve work-related driving, mobile plant and equipment, work at heights, and dropped objects. In light of these findings, it's crucial for organizations and SMEs to prioritize workplace safety and focus on mitigating these risks.

Recent prosecutions in Western Australia highlight the need for greater focus on working at height risks. In 2020, the director of a shed building company was sentenced to two years and two months' imprisonment - the first person to be imprisoned under WA's safety laws - following the death of one worker and serious injury of another. The incident occurred while the workers were installing roof sheets on a large machinery shed without appropriate safety measures in place. During the investigation, it was found there was a lack of safety systems, neither worker had a High-Risk Work License, and the director was operating a crane without the appropriate license.

In another case, a company director was fined $320,000 for failing to provide a safe workplace after 17 year old worker fell 12 meters to his death while installing a glass roof on the old Perth post office building in January 2017.

Simple steps to improve workplace safety and reduce risk exposures

After reviewing the information above, directors, executives, and senior leaders should ensure that their business has a fit-for-purpose safety management system in place and seek assurance that it's implemented effectively. Consulting with workers to identify potential risks and developing critical risk management programs for high-risk activities can also provide extra rigor or mandatory requirements.

It's also crucial to ensure that strict systems and processes are in place to prevent anyone without the appropriate High-Risk Work License or training from undertaking high-risk activities. By taking a proactive approach and meeting due diligence obligations, businesses can prioritize workplace safety and prevent work-related injuries and fatalities.

Contact Marsh today to learn more about how our team of experts can assist your business in developing and implementing effective safety management systems and mitigating risks to ensure the health and safety of your workforce.

Contact

Jamie Mallinder

Jamie Mallinder

Principal Consultant, Workforce Strategies – Pacific

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