How are employers and regulators responding to industrial manslaughter laws?

The introduction of industrial manslaughter laws in every mainland jurisdiction, together with recent proposed changes to laws in some states, has resulted in a renewed focus on the laws by duty holders, according to an international law firm.

While the laws do not introduce any new duties, it does mean the stakes are significantly higher for companies and individual officers when it comes to dealing with the aftermath of an incident resulting in a death, said Sarah Connolly, a solicitor at Herbert Smith Freehills.

“This has resulted in employers reassessing their post-incident response plans and renewed interest in implementing protective measures that can be implemented in the event of a catastrophic incident,” she said.

On a different note, Connolly observed industrial manslaughter laws have had a positive impact as duty holders seem to be putting more of a focus on their fatal and catastrophic risks and critical controls, with some developing programs of works dedicated to identifying, assessing and responding to those risks.

She said key questions duty holders are asking themselves include: “What are our fatal and catastrophic risks and what are we doing about them?”, “Are we (at least) meeting industry standards in the way we control these risks?”, “Are our critical controls effective at managing these risks?” and “Do we have effective governance systems and sufficient resources to control the risks?”.

There are important implications in this for board directors, according to Connolly, who said the key message for boards is not to be distracted by the gravity of the industrial manslaughter offences.

Instead, Connolly said they should remain focussed on what is required to ensure their organisations have appropriate safety governance programs in place to ensure fatal risks are adequately controlled on an ongoing basis.

“This means boards need to be clear on what their personal due diligence obligations are when it comes to maintaining oversight of fatal risks and controls,” she said.

“We have challenged boards to assess whether they have had adequate training to understand their legal duties, and the legal duties applying to their organisations and whether they are clear on what inquiries at a board level ought to be made to ensure appropriate oversight of their organisation’s safety compliance. These elements are essential to discharging due diligence obligations under safety regimes.”

It is also important for board members to demonstrate compliance with their due diligence duty if called upon by a regulator in the event of a fatal incident.

While board meeting minutes can be a useful tool to demonstrate compliance, Connolly said they are only as good as the quality of the conversation they record.

“These meetings should have a sufficient focus on WHS matters, including industry issues, emerging hazards and risks and incidents and near misses. In particular, adequate focus and attention should be given to a company’s fatal risks and critical controls in board meetings,” she said.

In the event of a fatality, Connolly stated that duty holders will face significant regulatory scrutiny at all levels of a company, from the board down to individual workers.

“In our experience, following a workplace incident, WHS regulators are increasingly exploring what the board knew or did prior to an incident,” she said.

“Regulators are asking for management charts, organisational structures, Board meeting minutes and copies of documents sent to board members.

“In some cases, we are seeing regulators request the appointment documentation for specific individual directors and copies of any performance evaluations for those directors.”

In addition, Connolly said there is almost always a strong focus on the company’s risk assessments, policies and procedures and internal and external WHS audit regimes.

“These matters go not only to determining whether a corporate duty holder has complied with its WHS obligations but also the steps taken by officers to ensure these obligations are being met,” she said.

“With recent changes proposed to Queensland’s industrial manslaughter laws to expand their scope, and New South Wales introducing a unit dedicated to prosecuting under the new laws, we are likely to see an increased focus by regulators in their investigations on assessing the suitability for bringing charges under industrial manslaughter laws.”

Industrial manslaughter penalties around Australia

  • Commonwealth: Legislation that criminalises industrial manslaughter at a federal level public sector level will commence on 1 July 2024 and the maximum penalty for a PCBU (individual) is 25 years imprisonment, and for a PCBU (body corporate) is a fine of $18 million.
  • ACT: Industrial manslaughter has been an offence in the ACT since 2004 and the maximum penalty for a PCBU (individual) is 20 years imprisonment, and for a PCBU (corporate) is a fine of $16.5 million.
  • NSW: The current maximum penalty for the highest form of an offence under state law is 5 years imprisonment for an individual or a $3.8 million fine for a body corporate. The NSW Government recently announced it will create the offence of industrial manslaughter, which allows for a maximum penalty of 25 years jail for an individual or $20 million in fines for a body corporate.
  • NT: The offence of industrial manslaughter came into effect in the Northern Territory on 1 February 2020 and the maximum penalty for a PCBU (individual) is imprisonment for life, and for a PCBU (corporate) is $11.44 million.
  • QLD: Queensland introduced the offence of industrial manslaughter in 2017 and the maximum penalty for a PCBU (individual) is 20 years imprisonment and for a PCBU (corporate) is $15.48 million.
  • SA: Legislation which introduces a new offence of industrial manslaughter has passed. When they come into effect on 1 July 2024, the maximum penalty for a PCBU (individual) is 20 years imprisonment, and for a PCBU (corporate) is a fine of $18 million.
  • VIC: Workplace manslaughter is an offence in Victoria and the maximum penalty for an individual is 25 years imprisonment, and for a body corporate is $19.231 million.
  • WA: Industrial manslaughter became an offence in Western Australia on 31 March 2022 and the maximum penalty for a PCBU (individual) is 20 years imprisonment and a fine of $5 million, while the penalty for a PCBU (corporate) is a fine of $10 million.
  • TAS:  Industrial manslaughter is not an offence in Tasmania.