How Australia’s New Industrial Manslaughter Laws Impact Businesses

As of 1 July 2024, South Australia and the Commonwealth public sector have introduced new, significantly more severe offences for industrial manslaughter. This legal change means that, except for Tasmania, nearly all Australian States and Territories now have criminal penalties for industrial manslaughter. Tasmania is also on the cusp of joining this list, recently introducing industrial manslaughter legislation to the Tasmanian Parliament.

What Is Industrial Manslaughter, and Who Is Affected?

Industrial manslaughter occurs when a worker’s death results from the unlawful actions of a person conducting a business or undertaking (PCBU) or an officer of the PCBU. An officer of the PCBU, such as a director or senior manager, can be held personally liable if they are found to have contributed to the breach of work health and safety laws that led to the worker’s death.

According to data from Safe Work Australia, the last five years saw an average of 180 workers killed at work each year in Australia. In 2023, Australia saw 175 workplace fatalities, with 64% occurring in agriculture, forestry and fishing, construction, transport, postal and warehousing sectors.

Employers in Australia have a duty of care to provide a safe working environment. The recent legislative push aims to create harmonised industrial manslaughter offences across the nation, imposing severe penalties on those who negligently or recklessly cause a worker’s death by breaching this duty of care.

• Negligent conduct refers to a failure to take reasonable care to prevent harm,
• Reckless conduct involves a conscious disregard for a substantial risk that death or serious injury could occur.

Implications for Employers

To avoid severe penalties, including imprisonment and uninsurable fines, employers must prioritise compliance with work health and safety (WHS) laws. Here are essential steps for businesses:

1. Cultivate a compliance culture: Safety policies and regulations should be the cornerstone of your business, above all other priorities. This emphasis will not only ensure the safety of your workers but also protect your business from severe legal and financial repercussions.
2. Develop robust safety systems: Ensure thorough documentation and safety processes are in place.
3. Adhere to WHS laws: Regularly update and ensure compliance with current WHS regulations.
4. Enforce safety protocols: Take strict action against those who violate safety rules.
5. Conduct regular audits: Frequent internal and external risk assessments are crucial to identify and address potential hazards. This proactive approach is a key step in ensuring the safety of your workers and the compliance of your business.
6. Work with accredited contractors and suppliers: Choose contractors and suppliers that have obtained recognised health and safety accreditation. This ensures they adhere to high standards of risk management and compliance.

Variations in Fault Elements and Penalties

While the core concept of industrial manslaughter laws is consistent, the specifics of fault elements—whether the conduct was negligent or reckless—vary by jurisdiction. Below is an overview of maximum penalties across different states and territories:

• Australian Capital Territory (ACT): $16.5 million fine for corporations, 20 years imprisonment for PCBUs or officers.
• Commonwealth (CTH): $18 million fine for corporations, 25 years imprisonment for PCBUs or officers. This includes PCBUs covered by the Commonwealth WHS legislation – being Commonwealth departments, agencies and other Commonwealth entities, as well as non-Commonwealth licensees.
• Northern Territory (NT): $10.075 million fine for corporations, life imprisonment for PCBUs or officers.
• Queensland (QLD): $15.48 million fine for corporations, 20 years imprisonment for PCBUs or officers.
• Victoria (VIC): $19.231 million fine for corporations, 25 years imprisonment for PCBUs or officers.
• South Australia (SA): $18 million fine for corporations, 20 years imprisonment for PCBUs or officers.
• Western Australia (WA): $10 million fine for corporations, 20 years imprisonment and/or a $5 million fine for PCBUs or officers.
• New South Wales (NSW): $20 million fine for corporations, 25 years imprisonment for PCBUs or officers.

The extension of industrial manslaughter laws across most Australian jurisdictions underscores the increased attention to workplace health and safety. Employers must understand the gravity of these laws and take proactive measures to protect their workers. By fostering a safety culture and ensuring compliance with WHS regulations, businesses can safeguard their employees and shield themselves from severe legal and financial repercussions.

Author: Alex Minett

Alex Minett is the Head of Product & Markets at Veriforce CHAS, a leading provider of health and safety assessment, risk mitigation, compliance, and supply chain management services. With a working history in the audit and management consulting industry, Alex is experienced in implementing visions and strategies. Skilled in negotiation, management and business development, he is passionate about driving CHAS in its mission to safeguard organisations from risk.