Legal Structure in Australia – Industrial Manslaughter Laws and WHS Laws Duties for PCBU
All corporate officers and managers (not just business owners) must ensure that forward looking due diligence systems are established and reviewed regularly in order to avoid incidents and fatalities in the workplace. Meeting a health and safety duty of care and avoiding “negligence’ is not a static obligation, it evolves with the technology and knowledge available to a business.
It must be remembered that a Board member or senior officer based in NSW may face industrial manslaughter liability for an incident that occurs within the business in Queensland or Victoria. For that reason, nationally operating businesses may need to take account of the severity of the obligations in Queensland when setting the nationwide safety settings and goals for the business.
An overview of industrial manslaughter laws in Australia
ACT: A person conducting a business or undertaking (PCBU) or an officer of a PCBU commits industrial manslaughter if they engage in conduct that breaches a WHS duty and causes a person’s death. The PCBU or officer must have been reckless or negligent about causing the death.
The maximum penalty is 20 years’ imprisonment for an individual and a fine of approximately $17M for a company.
QLD: It is an offence for a PCBU or senior officer to negligently cause the death of a worker, including where a worker is injured carrying out work and later dies.
The maximum penalty is 20 years’ imprisonment for an individual or a fine of approximately $10M for a company.
NSW: In late 2021, a Bill to introduce an industrial manslaughter offence passed the Legislative Council and is currently before the Legislative Assembly. Under the proposed legislation, a PCBU or senior officer commits the offence if a person dies at the workplace, or is injured at the workplace and later dies, and the PCBU or senior officer’s conduct caused the death. The PCBU or senior officer must have engaged in the conduct without reasonable excuse and have been grossly negligent or reckless.
The maximum penalty is 25 years’ imprisonment for an individual and fines of approximately $10M for a company.
VIC: Industrial manslaughter offences apply where an employer negligently breaches a WHS duty owed to a worker causing death to that worker.
The maximum penalty is 25 years’ imprisonment for an individual or a fine of approximately $18M for a company.
WA: The Work Health and Safety Act 2020 (WA) includes an industrial manslaughter offence, which arises when a duty holder (including officers of PCBUs in some situations) fails to comply with their health and safety duty and engages in conduct that causes the death of an individual, in the knowledge that the conduct was likely to result in death or serious harm, and in disregard of that likelihood.
The maximum penalty is 20 years’ imprisonment and fines of approximately $5M for an individual and a fine of approximately $10M for a company.
NT: A PCBU or an officer of a PCBU commits industrial manslaughter if they intentionally engage in conduct which breaches a health and safety duty and causes the death of an individual to whom the health and safety duty was owed. The PCBU or officer must also be reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.
The maximum penalty is imprisonment for life for an individual and a fine of approximately $10M for companies.
SA: In late 2020, a Bill to create the offence of industrial manslaughter was introduced in a Private Member’s Bill. Under the Bill, an employer (or an officer of the employer) would commit the offence if they were in breach of their duty of care and their breach caused the death of a worker. They also had to be ‘recklessly indifferent’ as to whether their conduct would create a substantial risk of serious harm. However, the second reading of the Bill was adjourned and there have been no further updates on whether the Bill will be reintroduced for debate.
Premier Peter Malinauskas has vowed to introduce “laws that will apply where an employer acts recklessly and their actions are the primary cause of an employee’s death.”
The new laws would significantly increase the maximum prison term to 20 years for company officers who negligently breach their duty to provide a safe workplace.
TAS: Industrial manslaughter is not currently an offence in Tasmania. There are no Bills before the Tasmanian Parliament to introduce an industrial manslaughter offence.