What is industrial manslaughter?
Industrial manslaughter is an offence where a PCBU (Employer in Victoria) knew, or ought to reasonably have known that an act or omission constituting a breach would create a substantial risk of serious harm to a person and the breach causes the death of a person.
Although the elements of the offence vary between the States and Territories they commonly consist of the following:
- the PCBU owes a duty to the worker; and
- the PCBU breaches that duty to the worker and is reckless or negligent; and
- the breach of the duty causes the death of the worker.
Update of industrial manslaughter across Australia
In our last update on 27 August 2020, we explained that industrial manslaughter laws have only been enacted in VIC, ACT, QLD and the NT. However, WA and SA are very close to implementation. In WA, the Work Health and Safety Bill 2011 has passed through both houses and is waiting Royal Assent. It will not become law until the corresponding regulations are finalised which will occur later in 2021. The new legislation includes a maximum penalty of up to 20 years of imprisonment for an individual and a maximum fine of $10 million for a body corporate.
SA has introduced a new Bill on 23 September 2020, mirroring the QLD’s industrial manslaughter laws. The penalties include a maximum fine of $13 million and 20 years’ imprisonment for company officers and employers.
The following table outlines when industrial manslaughter was introduced into VIC, ACT, QLD and the NT and the penalties that currently apply.
|State||Date of Introduction||Penalties|
|ACT||1 March 2004 under the Crimes Act 1990 (ACT) Part 2A.||The maximum penalty is $20,000 for individuals and $1,620,000 for corporations and/or 20 years’ imprisonment.|
|QLD||23 October 2017 under the Work Health and Safety Act 2011 (QLD) Part 2A.||The maximum penalty for a PCBU as an individual is 20 years’ imprisonment or as a body corporate is $13,345,000.
The maximum penalty for a senior officer is 20 years’ imprisonment.
|NT||1 February 2020 under the Work Health and Safety Act 2011 (NT) Division 6.||The maximum penalty for an individual is imprisonment for life or for a body corporate $10,270,000|
|VIC||1 July 2020 under the Occupational Health and Safety Act 2004 (VIC) Part 5A.||The maximum penalty is imprisonment for 25 years for a natural person and $16,522,000 for a body corporate.|
What about NSW and TAS?
Whilst there is no specific piece of legislation for industrial manslaughter in NSW, they have made amendments to the Work Health and Safety Act 2011 (NSW) to increase WHS penalties and the category 1 offences to include gross negligence. Further, in their explanatory memorandum, they have noted that the death of a person at work may constitute manslaughter under the Crimes Act 1990 (NSW), punishable by imprisonment for 25 years. It is unlikely that NSW will introduce industrial manslaughter any time soon, but it is a good first step.
The Unions of Tasmania have called for the State Government to implement the offence of industrial manslaughter, however, there has been no further news regarding its implementation.
Industrial manslaughter in action
In 2020 the first cases of industrial manslaughter were decided. Including, QLD’s first industrial manslaughter sentence after a worker at Brisbane Auto Recycling Pty Ltd was struck by a reversing forklift and pinned to a truck resulting in his death. The Company was fined $3 million in fines and two of the Company Directors were sentenced to 10 months’ imprisonment which was however suspended.
Further, the ACT the case of R v Watts proceeded to sentence. In Watts, a crane worker was instructed to move a large 10.3-tonne generator that exceeded the crane’s capacity, causing it to overturn and crush a worker between the boom of the crane and the ground. The worker’s death was instantaneous. The Defendant was sentenced to 12 months’ imprisonment, suspended upon a good behaviour order of 12 months.
It is clear from the statements of Government Ministers and the Safety Regulators, that industrial manslaughter legislation will be used wherever appropriate. A number of prosecutions have been commenced. PCBUs (Employers) must ensure they have implemented all reasonably practicable steps to protect themselves and their Officers from the risk of jail and significant fines.
Written by Jewlia Holt