Industrial Manslaughter (WA)
A new offence of industrial manslaughter commenced in Western Australia on 31 March 2022 as part of the Work Health and Safety Act 2020. The offence will apply where those who have a duty under the Act have failed to comply with that duty and that failure to comply caused a death. Only PCBU’s (a person conducting a business or undertaking alone or with others, whether or not for profit or gain) and their officers can be charged with industrial manslaughter. A PCBU can be a sole trader, each partner within a partnership, company, unincorporated association, government department or public corporation (including a local or regional government).
Industrial Manslaughter Law
Section 30A(1) of the Act states that a person commits industrial manslaughter if:
- they have a health and safety duty as a person conducting a business or undertaking (a PCBU); and
- they engage in conduct that causes the death of another person; and
- the conduct constitutes a failure to comply with the person’s health and safety duty; and
- they engage in the conduct:
- knowing it is likely to cause the death of, or serious harm to, another person; and
- disregarding that likelihood.
The prosecution must establish, beyond reasonable doubt, that the person knew their conduct was likely to cause the death of, or serious harm to, an individual and they acted in disregard of that likelihood.
The maximum penalty for an individual is 20 years imprisonment and a $5,000,000 fine. The maximum penalty for a company is a $10,000,000 fine.
Section 30A(3) of the Act states that an officer of a PCBU commits industrial manslaughter if:
- the PCBU has a health and safety duty as a person conducting a business or undertaking; and
- the PCBU engages in conduct that causes the death of an individual; and
- the PCBU’s conduct constitutes a failure to comply with the PCBU’s health and safety duty; and
- the PCBU’s conduct —
- is attributable to any neglect on the part of the officer; or
- is engaged in with the officer’s consent or connivance; and
- the officer engages in the officer’s conduct referred to in paragraph (d)(i) or (ii) —
- knowing that the PCBU’s conduct is likely to cause the death of, or serious harm to, an individual; and
- in disregard of that likelihood.
The maximum penalty for an officer of a PCBU is 20 years imprisonment and a $5,000,000 fine.
The Act also provides for Category 1, 2, and 3 offences.
The industrial manslaughter offence has not yet been prosecuted in Western Australia.
In May 2021, WorkSafe prosecuted a company director for an offence of failing to comply with an employer’s duty to, so far as is practicable, provide and maintain a working environment in which the employees of the employer are not exposed to hazards in contravention of section 19(1) of the Occupational Health and Safety Act 1984 in circumstances of gross negligence.
Two employees of MT Sheds were installing roofing on a machinery shed near Esperance in March 2020 when a strong wind dislodged the roof sheets they were installing, causing both workers to fall. One employee died after falling nine metres, and the other suffered multiple fractures after falling about seven metres.
MT Sheds director Mark Thomas Withers was charged with breaching a health and safety duty in circumstances of gross negligence, causing the death of, or serious harm to, an employee; and/or that he consented to acts/omissions in circumstances where he knew the contravention would likely cause the death of, or serious harm to, a person to whom a duty was owed, but acted or failed to act in disregard of that likelihood.
Withers pleaded guilty and was sentenced to three years and six months imprisonment, which was reduced to two years and two months in recognition of his guilty plea and other mitigating factors. The magistrate ordered eight months of the term be served immediately, with the remaining 18 months to be suspended for a period of 12 months. On a second charge of performing High-Risk Work of a class, namely Crane and hoist operation, non-slewing mobile crane, without being the holder of the appropriate class of High-Risk Work Licence, Withers was fined $2,250.00.
The company MT Sheds was fined a total of $605,000 for five offences.
Lessons For Business
A workplace death can have long-lasting effects on the person’s family, work colleagues and the company’s reputation. Companies can take steps to ensure their workplace is safe, such as:
- reviewing and updating (where needed) health and safety policies and procedures;
- conducting a safety audit to identify potential hazards and safety risks;
- reviewing all safety systems and controls to ensure effectiveness;
- offering regular health and safety training sessions and advice to all employees;
- ensuring all employees are adequately qualified and trained for their roles;
- ensuring a proper safety induction for all new employees;
- preparing, filing and reviewing records on workplace health and safety;
- reviewing insurance coverage for the company;
- fostering a proactive approach and a safety culture at the company.
Industrial Manslaughter Legislation in other States and Territories
The Australian Capital Territory was the first state or territory to introduce industrial manslaughter as an offence in 2004. The maximum penalty is 20 years imprisonment for an individual and up to $16,500,000 in fines for a company.
Queensland introduced Industrial Manslaughter as an offence in 2017. The maximum penalty is 20 years imprisonment for an individual and up to $10,000,000 fines for a company. In March 2022, Mr Jeffrey Owen was the first person in Australia to be convicted of an industrial manslaughter offence and jailed.
Victoria enacted an industrial manslaughter offence in 2020. The maximum penalty is 25 years imprisonment for an individual or a fine of up to $18,170,000 for a company.
The Northern Territory also enacted an Industrial Manslaughter offence in 2020. The maximum penalty is life imprisonment for a person or a fine of $10,200,000 for a company.
In New South Wales, a bill to introduce an Industrial Manslaughter offence passed the Legislative Council in November 2021 and is currently before the Legislative Assembly. The maximum penalty is 25 years imprisonment for an individual and $10,295,000 for a company.
In South Australia, a private member’s bill seeking to introduce an industrial manslaughter offence was introduced in 2020 however the second reading speech was adjourned and there is no currently no proposed legislation for an Industrial Manslaughter offence.
In Tasmania, there is presently no proposal to introduce an industrial manslaughter offence. Employers can still be prosecuted for workplace deaths under criminal manslaughter laws and general workplace safety laws.
For advice or representation in any legal matter, please contact Armstrong Legal.