Industrial Manslaughter

It appears that there will be a new law introduced by the South Australian Government.

Criminalising industrial manslaughter has been a commitment from South Australian Labor since 2018 and in November 2022 they released the draft Work Health and Safety (Industrial Manslaughter) Amendment Bill (“the Bill”). While the safety of employees is paramount, the MTA maintains that existing work health and safety legislation, as well as criminal manslaughter laws, are sufficient. Nevertheless, given this Bill is likely to become law, it is important for MTA members to be aware of their WHS responsibilities and the potential increased penalties should a workplace incident result in an employee’s death.

Current WHS Obligations

Any breaches of WHS obligations may currently be prosecuted under three (3) categories:

Category 3 applies in circumstances where:

• a person fails to comply with their health and safety duty.

Maximum penalty:

- Corporation: $500k

- PCBU or an officer of the PCBU: $100k

- Individual (including worker): $50k

Category 2 applies in circumstances where:

• a person fails to comply with their health and safety duty; and

• the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty:

- Corporation: $1.5m

- PCBU or an officer of the PCBU: $300k

- Individual (including a worker): $150k

Category 1 applies in circumstances where:

• a person, without reasonable excuse, engages in conduct that exposes an individual to whom a health and safety duty is owed to a risk of death or serious injury or illness; and

• the person is reckless as to the risk to an individual or death or serious injury or illness.

Maximum penalty:

- Corporation: $3m

- PCBU or an officer of the PCBU: $600k and/or 5 years imprisonment

- Individual (including a worker): $300k and/or 5 years

New Offence

The Bill amends the Work Health and Safety Act 2012 by including a more severe, industrial manslaughter offence, stating:

A person (being a person conducting a business or undertaking, or an officer of a person conducting a business or undertaking) commits an industrial manslaughter offence if—

(a) the person has a health and safety duty; and

(b) the person engages in conduct that breaches that duty; and

(c) the conduct causes the death of an individual to whom that duty is owed; and

(d) the person is reckless or grossly negligent as to the risk to an individual of death.

Note: Grossly negligent involves:

• Such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

• Such a high risk of causing the death of an individual.

The maximum penalty for the new offence is:

- PCBU or an officer of the PCBU: 20 years imprisonment

- Corporation: $15m

This maximum penalty is similar to other industrial manslaughter offences around the country:

• VIC – Individual: 25 years – Body corporate: $18.174m • QLD – Individual: 20 years

– Body corporate: $13.785m

• WA – Individual: 20 years and $5m – Body corporate: $10m

• ACT – Individual: 20 years – Body corporate: $16.5m

• NT – Individual: Life (non-parole period of 20 years) – Body corporate: $10.205m

Comments on the Bill

1) MTA has queried the need to need to introduce a new offence of industrial manslaughter. The existing crime of manslaughter is contained within section 13 of the Criminal Law Consolidation Act 1935. This section has successfully been used by the Office of the Director of Public Prosecutions in securing a conviction in relation to the charge of manslaughter against an employer in an industrial setting. This case involved in the prosecution of the owner of a trucking company. A driver of one of his trucks crashed as a result of malfunctioning brakes, which the owner was aware of, resulting in the driver’s death. The business owner was sentenced to 10 years imprisonment. Given the availability of current offences, the MTA considers it unnecessary to introduce a further offence.

2) Should industrial manslaughter laws be introduced then the MTA maintains that only the most egregious workplace incidents should be prosecuted under such laws. However, the MTA is concerned that the Bill allows an alternative conviction in circumstances where prosecutors have been unable to prove the offence of industrial manslaughter. This may encourage prosecutors to ‘overcharge’ defendants in the knowledge that if unsuccessful, they can still succeed on a lesser charge.

3) Whilst category 1-3 offences in the Work Health and Safety Act 2012 apply to any person that has a health and safety duty (including workers), the offence of industrial manslaughter is drafted such that it is only applicable to people that constitute a PCBU or an officer of a PCBU. The MTA is of the view that if industrial manslaughter offences are to be introduced that it should apply to every person (including workers) in the business.

The likely introduction of industrial manslaughter laws will now mean that employers face considerable penalties in the event that an incident results in an employee’s death. That said, MTA members are reminded that as a business owner there are already strict WHS laws which already require compliance. This is a timely reminder for business owners to review their current workplace policies, identify any hazards in their workplace, and rectify any deficiencies urgently.

If you require any assistance with identifying hazards in your workplace, or ensuring that your workplace policies are best practice, then please contact the MTA Workplace Relations Team on (08) 8291 2000 or email wr@mtasant.com.au.