The New South Wales Government introduced a Bill to amend the Work Health and Safety Act 2011 (NSW) (WHS Act) to establish the offence of industrial manslaughter on 4 June 2024. The Bill now passed carries severe penalties, including 25 years imprisonment for individuals and a $20 million fine for body corporates. This article considers the changes and what they mean for NSW workers.
When is an Industrial Manslaughter offence committed?
Under section 311, the offence is committed if a person with a health and safety duty, who is an officer or a Person Conducting a Business or Undertaking (PCBU), engages in conduct through an act or omission that results in the death of a worker or another individual to whom the duty is owed, and does so with gross negligence.
Gross negligence by individuals and body corporates
Body corporate – gross negligence for a body corporate can be demonstrated by inadequate corporate management, control, or supervision of one or more authorised persons' conduct, or by failing to provide adequate systems for conveying relevant information within the corporate body. Alleged offences against a body corporate will be prosecuted summarily before the Industrial Court of New South Wales unless the prosecutor elects for an indictment.
Individuals – offences against individuals will be prosecuted by indictment by the Office of the Director of Public Prosecutions before a judge and jury.
In any industrial manslaughter prosecution, the court or jury may find an alternative verdict of a section 31 offence of the WHS Act.
Section 244BA2 clarifies that gross negligence for a body corporate can be established without any single individual engaging in such conduct.
The court can aggregate the conduct of multiple authorised persons to determine gross negligence. The court will consider if the conduct was substantially due to inadequate corporate management, control, or supervision, or a failure to provide adequate systems for conveying relevant information within the body corporate.
There is no limitation period for commencing proceedings for industrial manslaughter, and enforceable undertakings are not an alternative to prosecution.
Category one offences serve as a statutory alternative when the court or jury is not satisfied with the industrial manslaughter charge but finds the threshold for a category one offence is met.
Increased penalties
As of 1 July 2024, maximum penalties for WHS offences have significantly increased in NSW.
Category one offences
Category Two & Three offences
Penalties for category two and three offences have also risen, and the value of a penalty unit has increased with indexation on 1 July 2024.
Industrial Court of New South Wales
The new Industrial Court of New South Wales commenced operations on 1 July 2024 as a superior court of record, empowered to hear various work health and safety matters, including prosecutions for summary offences and industrial manslaughter offences for body corporates. However, category one offences alleged against individuals will be prosecuted on indictment before the District Court of New South Wales.
The court was reintroduced through the Industrial Relations Amendment Bill 2023 in December 2023.It is designed to enhance access to justice by creating a centralised forum for workplace matters in New South Wales. The court comprises three judges specialising in WHS matters.
Currently, every state and territory in Australia, except Tasmania, has now enacted the offence of industrial manslaughter. Tasmania however, is currently considering the equivalent amendment.
Workers compensation
The purpose of the bill is to deter unsafe practices in the workplace. The bill recognises that New South Wales has the highest number of workplace fatalities in Australia, and the need for stronger accountability and penalties for gross negligence associated with a workplace fatality.
The proposed changes do not therefore intend to override or extinguish the workers compensation death benefit entitlements, available to the dependants or the estate of a deceased worker.
Footnotes
1 Work Health and Safety Act 2011
(NSW).
2 Ibid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.