The introduction of industrial manslaughter legislation across Australia has introduced a significant shift in legal accountability for workplace fatalities.
With severe penalties for both individuals and organisations, understanding industrial manslaughter laws is crucial for both individuals and organisations to help mitigate the risk of significant legal and financial consequences.
In this article, we explore the potential risks associated with industrial manslaughter legislation, examine the insurance implications, and outline key actions that individuals and organisations should undertake to prevent prosecution, fines, and imprisonment.
What is industrial manslaughter?
Industrial manslaughter is an offence where an employer, body corporate, or person conducting a business or undertaking (PCBU), or individual who is an officer of the PCBU (such as director or senior executive) is found to have caused the death of an individual through negligent or reckless conduct.
The key elements of industrial manslaughter involve:
Negligence: This refers to a serious breach of duty that demonstrates a disregard for the safety of others, where the conduct falls far below the standard expected.
Recklessness: This involves a conscious disregard of a substantial and unjustifiable risk that the conduct will result in harm or death.
Industrial manslaughter legislation across Australia
The model WHS Act was amended in 2023 to introduce the industrial manslaughter offence, which serves as an additional layer of accountability above Category 1 offences. Some states and territories had already enacted industrial manslaughter legislation.
This has led to industrial manslaughter laws being passed for all remaining states and territories, with NSW and Tasmania being the last states to enact this legislation.
The penalties are severe, ranging from substantial fines to life imprisonment for those found guilty.
Summary of penalties in the new legislation by state and territory:
State | Test | Corporations | Individuals |
NSW (in force 24 June 2024) | Gross negligence | $20M Body Corporate | 25 years |
Vic | Negligent conduct | $19.759M Body Corporate (until 30 June 2025) | 25 years |
Qld | Negligent conduct | $10M Body Corporate | 20 Years |
WA | Negligent conduct | $10 M Body Corporate | 20 years $5M for an officer |
ACT | Reckless or negligent conduct | $16.5M Body Corporate | 20 years |
Tas (enacted 11 September 2024) | Negligent conduct | $18M | 21 years |
NT | Reckless or negligent conduct | $12M from 1 July 2024 | Life |
SA (in force from 1 July 2024) | Gross negligence or reckless conduct | $18M | 20 years |
Commonwealth (in force from 1 July 2024) | Intentional negligence or recklessness | $18M | 25 years |
Category 1 offences
The industrial manslaughter offence is an additional layer of legal accountability that precedes the Category 1 offence under each state’s WHS Act (excluding Victoria).
Penalties for Category 1 offences are also severe, with individuals facing fines of up to $600,000 and/or up to 5 years imprisonment, while corporations may be fined up to $3 million.
Unlike industrial manslaughter laws, which primarily hold PCBUs, senior executives, and company directors accountable for worker fatalities, Category 1 offences extend liability to any individual with management or control over work practices.
This means that anyone in a position of authority must be diligent in their safety duties to prevent workplace incidents.
Does insurance cover WHS fines?
Insurance coverage for WHS fines is now prohibited in Western Australia, Victoria, Queensland and New South Wales, with the remaining states and territories expected to follow suit.
Although insurance can no longer cover WHS fines in these states, Directors and Officers (D&O) and Statutory Liability insurance may still provide cover for legal defence costs related to WHS-related prosecutions.
It is essential for organisations to review and update their insurance coverage with their broker to ensure it aligns with current legislative requirements and organisational needs.
Common hazards leading to workplace fatalities
Incidents that have led to prosecutions under industrial manslaughter legislation typically involve significant lapses in safety protocols. Based on existing case law examples, the common types of incidents have included:
Falls from height: Workers falling from penetrations, collapsing structures or unprotected edges due to lack of proper fall prevention and protection systems.
Machinery accidents: Employees being caught in or struck by unguarded machinery or equipment.
Vehicle-related incidents: Collisions or rollovers involving workplace vehicles like forklifts or trucks due to inadequate training or safety procedures.
Structural failures: Collapses of structures like scaffolding or trenches due to insufficient safety checks or engineering assessments.
Notable industrial manslaughter prosecutions
Queensland:
In 2020, an auto recycling company was convicted and fined $3 million and two directors were convicted and sentenced to 10 months imprisonment, with a suspended sentence, following an incident involving a reversing forklift.
In 2022, an individual was convicted and sentenced to five years prison (suspended after 18 months) following a forklift incident.
Northern Territory:
In 2022, a construction company was charged with industrial manslaughter following a chain failure incident. In 2023, the industrial manslaughter charges were withdrawn. In 2024, the company was found guilty of two counts of failing to comply with its health and safety duty.
In 2024, the director of a building contractor was committed to trial for a fall-related death.
Victoria:
In 2024, a stonemasonry company was convicted and fined $1.3 million following a forklift incident. The sole director was also convicted and placed on a two-year Community Corrections Order.
Western Australia:
In 2021, a director of a shed construction company was sentenced to 2 years and 2 months imprisonment and the company was fined $550,000 following a fall from height incident.
The importance of exercising due diligence
To help prevent workplace fatalities and minimise the risk of significant fines and imprisonment, officers of organisations must adhere to one fundamental principle: due diligence.
Regardless of your location or seniority, adhering to these obligations is essential for ensuring that workplaces under your control are safe and without risks to health.
“Due diligence”, as defined by WHS legislation, involves taking the following reasonable steps to ensure WHS compliance:
1. To acquire and keep up‑to‑date knowledge of work health and safety matters
Seek information and training: Actively pursue information and training on WHS relevant to your business and industry.
Understand legislation: Familiarise yourself with relevant WHS legislation and stay informed about any legislative changes that affect your business.
2. Understand the nature of operations and associated hazards and risks
Walk the Floor: Regularly visit the workplace to understand the hazards and risks workers face, as well as the culture of workplace safety.
Identify Key Risks: Focus on hazards that could cause fatalities and ensure measures are in place to mitigate these risks, such as moving plant/forklifts, falls from height, machinery guarding, confined spaces, chemicals and equipment under pressure.
3. Ensure appropriate resources and processes for managing risks
Adequate personnel: Ensure your business has skilled WHS personnel.
WHS management systems: Implement a WHS management system with clear policies and procedures for managing risks.
Risk assessments: Conduct thorough risk assessments and implement controls to eliminate or minimise risks as far as reasonably practicable.
Safety equipment: Provide workers with the necessary tools and equipment to perform their tasks safely.
4. Manage and respond to incidents, hazards, and risks
Reporting systems: Establish a robust hazard and incident reporting system. Encourage workers to report hazards and incidents.
Investigation and control: Investigate reported hazards and incidents promptly and implement control measures to prevent recurrence.
5. Comply with WHS Act requirements
Adequate facilities and work environment: Ensure the workplace is safe and provides adequate facilities.
Report notifiable incidents: Immediately report any notifiable incidents to the Regulator.
Consultation mechanisms: Implement effective consultation mechanisms with workers.
Training and supervision: Provide comprehensive training, instruction, and supervision to workers to help ensure they perform their duties safely.
Monitor health and the environment: If applicable, monitor the workplace environment and workers' health to help prevent injury and illness.
6. Verify the effectiveness of WHS management processes
Audit and review program: Implement an audit or review program to periodically assess the effectiveness of the WHS management system and risk management processes.
Accurate reporting: Ensure board or executive reports on WHS performance are accurate and provide necessary information.
Understand performance information: Know what WHS performance information you need and ensure you receive it.
The Critical Role of WHS Expertise
Obtaining expert advice on WHS matters can help to mitigate the risk of industrial manslaughter prosecution.
Engaging a WHS specialist can help organisations implement more effective safety management systems, conduct risk assessments, assess performance and help maintain compliance with regulations.
This guidance can help ensure that WHS measures are robust and well-documented, which can not only help to prevent workplace incidents but can also help provide a stronger defence in the event of legal prosecution.
For more information
For more information on how Lockton can assist your organisation in creating a safer workplace and mitigating the risk of WHS prosecution, please get in touch.
The contents of this publication are provided for general information only. Lockton arranges the insurance and is not the insurer. While the content contributors have taken reasonable care in compiling the information presented, we do not warrant that the information is correct. The contents of this publication are not intended as a legal commentary or advice and should not be relied on in that way. It is not intended to be interpreted as advice on which you should rely and may not necessarily be suitable for you. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content in this publication.
