Industrial Manslaughter - What Does It Mean For Me?
With the recent introduction of Industrial Manslaughter legislation, let’s consider what it all means. Industrial manslaughter is a serious offence where an employer, body corporate, or person conducting a business or undertaking (PCBU) or an officer of the PCBU is found to have caused the death of an individual through negligent or reckless conduct. The key elements involve:
Negligence: A serious breach of duty that shows a disregard for the safety of others.
Recklessness: A conscious disregard of a substantial and unjustifiable risk that the conduct will result in harm or death.
Industrial Manslaughter Legislation Across Australia
The model WHS Act was amended in 2023 to introduce the industrial manslaughter offence, adding an extra layer of accountability above Category 1 offences. All states and territories, including NSW and Tasmania, have enacted this legislation. Penalties are severe, up to life imprisonment.
Category 1 Offences
Category 1 offences under each state’s WHS Act (excluding Victoria) also carry severe penalties, with individuals facing fines up to $600,000 and/or up to 5 years imprisonment and corporations up to $3 million. These offences extend liability to any individual with management or control over work practices. This includes but is not limited to directors, managers, supervisors, contractor managers, and, in some cases, employees.
Common Hazards Leading to Workplace Fatalities
Incidents leading to prosecutions under industrial manslaughter legislation often involve significant lapses in safety protocols. This can include, but is not limited to:
Falls from height
Machinery accidents
Vehicle-related incidents
Structural failures
Confined Space incidents
Examples of prosecutions
An auto recycling company was fined $3 million, and two directors were sentenced to 10 months imprisonment following a forklift incident.
A construction company was charged with industrial manslaughter following a chain failure incident.
A stonemasonry company was fined $1.3 million, and the sole director was placed on a two-year Community Corrections Order following a forklift incident.
A director was sentenced to 2 years and 2 months imprisonment, and the company was fined $550,000 following a fall from height incident.
Exercising Due Diligence
To prevent workplace fatalities and minimise the risk of prosecution, officers must adhere to due diligence, which involves:
Acquiring and keeping up-to-date knowledge of WHS matters.
Understanding the nature of operations and associated hazards and risks.
Ensuring appropriate resources and processes for managing risks.
Managing and responding to incidents, hazards, and risks.
Complying with WHS Act requirements.
Verifying the effectiveness of WHS management processes.
Insurance
Insurance coverage for WHS fines is prohibited in Western Australia, Victoria, Queensland, and New South Wales, with other states expected to follow. However, Directors and Officers (D&O) and Statutory Liability insurance may still cover legal defence costs related to WHS-related prosecutions.
The Critical Role of WHS Expertise
Engaging a WHS specialist, such as Anzen Associates, can help organisations implement effective safety management systems, conduct risk assessments, and maintain compliance with regulations, thereby mitigating the risk of industrial manslaughter prosecution.
If you need more detailed information or assistance, feel free to contact us on 1300 269361 (ANZEN1)
