Under the harmonised WHS system, all States and Territories (except Victoria and West Australia) have a Work Health & Safety Act based on the model WHS Act. The model WHS Act has 3 categories of WHS offences – the Category I offence (reckless conduct) is the most serious offence.
On the 23rd of October 2017, a new category of offence called industrial manslaughter became law in Queensland in their amended WHS Act. The penalties for this offence are at least 3 times higher than the penalties for a Category 1 reckless conduct offence in the NSW WHS Act.
This article covers the circumstances in which this new offence might be applied to your organisation, explains what industrial manslaughter is and the potential penalties, and the recent increase in the use of manslaughter in NSW and other States under the Criminal Law for a WHS fatality.
What is an Industrial Manslaughter Offence?
Under the newly amended Queensland WHS Act, a PCBU or a Senior Officer of the PCBU can be prosecuted for industrial manslaughter offence if:
- a worker dies, or is injured and later dies, while carrying out work for the PCBU
- the conduct of the PCBU or Senior Officer substantially contributes to the death of the worker and their conduct was negligent.
Who are Senior Officers?
The meaning of the words Senior Officer cover not only Directors of the company because it includes any person who is “concerned with or takes part in the corporation’s management”. It thus apparently also includes Managers who do not have a duty of due diligence under section 27 of the WHS Act.
What are the Maximum Penalties for Industrial Manslaughter?
The maximum penalties for Industrial Manslaughter in Queensland under their WHS Act are 20 years imprisonment for an individual and a $10 million fine for a body corporate.
The penalties for a Category 1 Offence (reckless conduct) in the WHS Act are: a maximum penalty of 5 years imprisonment for individuals and fine of up to $3 million for corporations, $600,000 for Officers, and $300,000 for workers.
“We promised to get industrial manslaughter on the books in Queensland, and to send out a strong message that if you cost someone their life, you will pay," Ms Grace the Queensland Industrial Relations Minister said. “Importantly, companies won’t be able to hide behind elaborate corporate structures to evade their responsibilities”.
Could this Queensland Law Affect PCBUs and Senior Officers in Other States & Territories?
Yes it could. For example, the Queensland WHS Act would apply if a PCBU from another State or Territory established a branch office in Queensland or carried out work in Queensland for their clients such as installing machinery or infrastructure or carried out construction work.
Also other States might follow Queensland’s example. The States and Territories who signed up for harmonised WHS legislation will meet in 2018 for a national review of the model WHS legislation. The Queensland Government has indicated its intention to recommend that other States and Territories also add industrial manslaughter to their WHS legislation.
The ACT already has a criminal offence called industrial manslaughter and has had it in force since 2003.
Additionally in recent times there has been what appears to be a rise in prosecutions for manslaughter in NSW and Queensland under the criminal law for serious WHS accidents that occurred on the road and at a work location. (See the article by Michael Tooma and Lucy Bochenek from Clyde & Co Lawyers, Rise in Manslaughter and Serious Criminal Charges Arising out of Workplace Safety Incidents)
What You Can Do About This
Your safeguard against the possibility of being prosecuted for manslaughter under the criminal law or prosecuted for industrial manslaughter under a WHS law is to have and maintain a rock-solid sound WHS Management system in place.
In particular you may want to first focus on and deal with any risk of reckless or negligent conduct in your workplace activities.
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