Industrial Manslaughter (WA)
Industrial manslaughter laws in Western Australia and beyond: everything you need to know
Most business owners don’t expect to be thinking about industrial manslaughter laws when they arrive at work each morning. But when there’s a serious workplace incident or death, attention can quickly turn to whether they have done enough to keep their workers safe.
In those cases, questions can come up about training, safety procedures, supervision and whether risks were ignored. In some cases, businesses and even other senior members of the business can face legal repercussions including significant fines or even criminal penalties including imprisonment.
Industrial manslaughter in Western Australia
This has become particularly important in Western Australia, as a new offence of industrial manslaughter was introduced in 2022. Its stated goal is to hold business owners and operators accountable for high-level negligence or recklessness that has resulted in death.
The new law was ushered in under the state’s Work Health and Safety Act 2020 (WHS Act). This piece of legislation replaced the 1984 Act and unified separate workplace laws.
Here’s what you need to know about the new offence and how you can minimise your risk.
What is industrial manslaughter in WA?
New industrial manslaughter laws came into effect in Western Australia on 31 March 2022 as part of a broader push to improve workplace safety and accountability. The laws are designed to protect workers from death or serious harm at work and to make sure that businesses are held responsible where serious safety failures occur.
Here’s what you need to know:
Who can be charged?
Only a person (which can mean an individual or an organisation under the law) who is conducting a business or undertaking (PCBUs) and their officers can be charged with industrial manslaughter.
The new label of PCBU aims to bring in modern working relationships that may not fit in the traditional employer role. This can include sole traders, partners within a partnership, companies, unincorporated associations and government departments. Of course, there are exemptions and exceptions.
What’s the law?
PCBUs have a primary duty of care under the WHS Act to ensure the health and safety of their workers while they’re at work. And if they don’t, it might be considered to be industrial manslaughter, which is a crime.
Section 30A of the WHS Act sets out the offence of industrial manslaughter and explains who can be held responsible. Importantly, the law treats a business itself differently from the officers who run or manage it, meaning different legal obligations and penalties can apply depending on a person’s role and level of responsibility within the organisation.
Essentially, a person commits industrial manslaughter if:
- They have a health and safety duty as a PCBU
- They engage in conduct that causes the death of another person
- 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 they disregard that likelihood
In comparison, 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
- PCBU engages in conduct that causes the death of an individual
- PCBU’s conduct constitutes a failure to comply with the PCBU’s health and safety duty
- 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
- Officer engages in the conduct referred to in the line above, 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
Penalties for industrial manslaughter
These offences carry some of the most serious workplace safety penalties available under WA law, reflecting the potentially devastating consequences of serious safety failures.
The maximum penalty for an individual or an officer of a PCBU is 20 years’ imprisonment and a $5,000,000 fine. The maximum penalty for a company is a $10,000,000 fine.
Other breach offences
The WHS Act also provides for three additional categories of offences for breaching a workplace health and safety duty.
- Category 1 offences apply to those with a workplace health and safety duty, whose conduct fails to comply with that duty and causes the death of, or serious harm to, a person. For example, knowingly directing workers to use unsafe machinery that later causes a fatal accident.
- Category 2 offences apply to those with a workplace health and safety duty, whose conduct fails to comply with that duty and exposes a person to the risk of death, injury or harm to health. For example, failing to install proper fall protection on a high-rise construction site.
- Category 3 offences apply to those with a workplace health and safety duty who fail to comply with that duty. For example, failing to provide up-to-date workplace safety training to employees.
Lessons for business
A workplace death can have long-lasting effects on the person’s family, work colleagues and the company’s reputation. It’s vital that PCBUs and their officers take their duty of care seriously.
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, but keep in mind that insurance coverage for WHS penalties is prohibited
- Fostering a proactive approach and a safety culture at the company
Industrial manslaughter legislation in other states and territories
New industrial manslaughter legislation has been introduced in several Australian states and territories, as well as federally, over the last few years.
The Australian Capital Territory was the first Australian jurisdiction to introduce industrial manslaughter as an offence in 2004. In 2021, the offence was moved from its original legislation into the Work Health and Safety Act 2011. The maximum penalty is 20 years imprisonment for an individual and up to $16,500,000 in fines for a corporation.
Queensland introduced industrial manslaughter as an offence for PCBUs and their senior officers in 2017. The maximum penalty is 20 years imprisonment for an individual and 100,000 penalty units for a company ($16,690,000 at time of writing). In March 2022, Jeffrey Owen was the first person in Australia to be jailed for an industrial manslaughter offence. The judge stated that while the deceased worker had placed himself in harm’s way, that didn’t relieve the defendant of his responsibilities.
Victoria enacted an industrial manslaughter offence in 2020. The maximum penalty in the state is 25 years imprisonment for an individual and 100,000 penalty units for a corporation ($20,351,000 at time of writing).
The Northern Territory’s industrial manslaughter offence came into effect in 2020. The maximum penalty is life imprisonment for an individual and 65,000 penalty units for a body corporate. After a long legal battle, the Supreme Court of the Northern Territory dismissed appeals from a Darwin construction company last year over the convictions and fine imposed for the 2020 death of a 50-year-old worker.
An industrial manslaughter offence was introduced in New South Wales in September 2024. The maximum penalty is 25 years imprisonment for an individual and $20,000,000 for a body corporate.
In South Australia, an industrial manslaughter offence came into effect in July 2024. The maximum penalty is 20 years in prison for individuals and $18,000,000 in fines for companies.
Tasmania introduced an industrial manslaughter law in October 2024. Maximum penalties are 21 years imprisonment for individuals and $18,000,000 for corporations.
In July 2024, the Commonwealth also introduced industrial manslaughter laws at a national level. The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 added the offence to the Work Health and Safety Act 2011. The penalty for an individual is 25 years imprisonment and for a body corporate is $18,000,000.
Getting support
Industrial manslaughter laws reflect a growing expectation that workplace safety be taken seriously at every level of a business. While most employers work hard to create safe workplaces, these laws are designed to address the most serious failures where risks are ignored and lives are lost.
For businesses, the focus should not just be on avoiding penalties, but on building strong safety systems, maintaining proper oversight and creating a workplace culture where risks are identified and addressed early. As industrial manslaughter laws continue to expand across Australia, understanding your obligations under workplace health and safety legislation has never been more important.
If you need advice about industrial manslaughter laws, workplace safety obligations or WHS compliance, please contact the Armstrong Legal team today.
