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: Has passed late 2023
The maximum penalty is 20 years’ imprisonment and and a fine of approximately $18M for a company.
TAS: Industrial manslaughter is not currently an offence in Tasmania. There are no Bills before the Tasmanian Parliament to introduce an industrial manslaughter offence.
Comcare just came on line 2024 alongside the Model Act by Safe Work Australia.
We expect Tasmania to follow through shortly early FY2025.