13 October 2020 - General Commercial, Human Resources Law, Workplace Safety Changes to Industrial Manslaughter Legislation

Over the past few years, there has been a push to introduce industrial manslaughter offences in a number of Australian States and Territories. Once the Western Australian legislative changes come into force (which will likely be later this year), most States and Territories will have specific industrial manslaughter legislation in place. Refer to the table below to see the nature of the offence and the maximum penalty in each State or Territory.

While New South Wales does not have specific industrial manslaughter laws, a recently passed Act noted that in certain circumstances, the death of a person at work may constitute manslaughter under the Crimes Act 1900 (NSW), which is punishable by 25 years imprisonment.

Changes in Victoria

As of 1 July 2020, a new criminal offence of industrial manslaughter has been introduced in Victoria by amendments to the Occupational Health and Safety Act 2004 (OHS Act). The offence applies to negligent conduct by an employer, other duty holders or an officer of an organisation, who breach certain duties under the OHS Act, and that breach causes the death of a person who was owed a duty. These provisions only apply to any death after 1 July 2020. The changes do not create any additional duties, but introduce higher penalties for existing duties under the OHS Act.

As outlined in the table below, the elements of the offence are:

• The “person charged” must be a company or an individual who is not an employee or volunteer
• The person must have owed the victim a duty under the OHS Act
• The person was negligent, and breached the duty
• The breach caused the death of the victim, and
• If the person is an individual, he or she must have acted consciously and voluntarily when breaching the duty owed.

The maximum penalties are:

• 25 years imprisonment for individuals; and
• 100,000 penalty units for a company ($16.5 million as at 1 July 2020).

Defences

There are limited defences available to a person charged with industrial manslaughter (they are the same as those available to a charge of manslaughter under the Crimes Act). They include duress, extraordinary emergency and self-defence.

Accordingly, employers (and company officers) must take all steps available to them to mitigate the risk of an industrial manslaughter charge. That includes:-

• Reviewing the potential hazards and risks in the workplace;
• Ensuring there are up to date OHS systems, instruction training and supervision;
• Regularly reviewing and updating the safety systems and controls in place;
• Conducting regular training sessions and providing information to employees, managers and officers to ensure everyone is aware of his or her safety obligations;
• Ensuring all employees receive appropriate and regular inductions;
• Reviewing and updating existing health and safety policies related; and
• Reviewing and updating incident action plans and responses.

State-by-state breakdown