Industrial Manslaughter (WA)
Industrial manslaughter occurs when a person dies at work due to negligence by an employer. It is a relatively new offence in Western Australia, having been included in the Work Health and Safety Act 2020.
Industrial manslaughter law
Section 30A states that a person commits industrial manslaughter if:
- they have a health and safety duty as a person conducting a business or undertaking;
- they engage in conduct that causes the death of another person;
- the conduct constitutes a failure to comply with the health and safety duty;
- 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 maximum penalty is 20 years imprisonment and a $5,000,000 fine for a person, or a fine of $10,000,000 for a company. The same penalty applies to a company officer who consents to, or secretly allows, or causes by neglect, such conduct in a company, and the officer knows the likelihood of death or serious harm and disregards that likelihood. The offence does not apply to volunteers.
Industrial manslaughter is divided into Category 1, 2, and 3 offences.
A Category 1 offence occurs when a person has health and safety duty as a person conducting a business or undertaking, they fail to comply with the duty, and the failure causes the death of, or serious harm to, another person. The maximum penalty is 5 years imprisonment and a $680,00 fine for a person, or a fine of $3,500,000 for a company.
A Category 2 offence occurs when the failure exposes another person to a risk of death or of injury or harm to health. The maximum penalty is a fine of $350,000 for a company officer, $170,000 for any other person, or $1,800,000 for a company.
A Category 1 offence occurs when a person fails to comply with their duty. The maximum penalty is a fine of $120,000 for a company officer, $55,000 for any other person, or $570,000 for a company.
The industrial manslaughter offence has not yet been prosecuted in Western Australia. However, manslaughter in a workplace was considered early in 2021 in the WorkSafe prosecution of a company director under the Occupational Health and Safety Act 1984.
Two employees of MT Sheds were installing roofing on a machinery shed near Esperance in March 2020 when a strong wind dislodged roof sheets they were installing, causing both workers to fall. One employee died after falling 9 metres, and the other suffered multiple fractures after falling about 7 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 3 years and 6 months imprisonment, which was reduced to 2 years and 2 months in recognition of the guilty plea and other mitigating factors. Eighteen months of the sentence were suspended.
Lessons for business
A workplace death can have long-lasting effects on the person’s family, work colleague 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. It carries a maximum fine of 2000 penalty units ($320,000 for a person, or $1,620,000 for a business), or 20 years imprisonment, or both.
Queensland introduced industrial manslaughter as an offence in 2017. The maximum penalty is 20 years imprisonment for a person, or 100,000 penalty units ($13,345,000) for a company.
Victoria enacted industrial manslaughter law in 2020. The maximum penalty is 25 years imprisonment for a person, or a fine of 100,000 penalty units ($16,522,000) for a business.
The Northern Territory also enacted industrial manslaughter law in 2020. The maximum penalty is life imprisonment for a person, or a fine of 65,000 penalty units ($10,270,000) for a business.
As of June 2021, New South Wales was debating a bill to create an industrial manslaughter offence. South Australia and Tasmania were not planning to introduce specific industrial manslaughter legislation. Employers in these places 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.