Overview of the Industrial Manslaughter Legislation in NSW
On 20 June 2024, the NSW Parliament passed the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 . The legislation introduces a new offence of industrial manslaughter into the Work Health and Safety Act 2011 (NSW) (WHS Act), applicable to persons conducting a business or undertaking (PCBUs) and individuals in respect of workplace deaths involving gross negligence. The new offence will come into force on a day to be announced.
The amendments do not change the existing duties of individuals and PCBUs under the WHS Act. However, the significant penalties that apply to a conviction for industrial manslaughter heighten the importance of taking a proactive approach to meeting those duties.
Elements of industrial manslaughter
The industrial manslaughter offence is committed where a person:
has a health and safety duty under the WHS Act (for example, a PCBU has a primary duty of care to take reasonably practicable steps to ensure the safety of its workers when at work);
is a PCBU or an officer of PCBU (excluding volunteers);
engages in conduct, either by an act or omission, that breaches their duty and causes the death of a worker or another individual, to whom the person’s duty is owed; and
engages in the conduct with gross negligence.
Gross negligence by a body corporate will be established where there are:
inadequate corporate management, control or supervision of the conduct of one or more authorised persons; or
a failure to provide adequate systems for conveying relevant information to relevant persons within the organisation.
Key changes to the WHS Act
Other key changes to the WHS Act are:
No limitation period : Unlike other offences under the WHS Act, industrial manslaughter will be prosecuted without a limitation period.
Alternative verdict : If the court finds the individual or PCBU not guilty of industrial manslaughter, the court may convict for a lesser WHS offence, i.e. a Category 1 offence (see below), even if the time limitation period for the lesser offence has lapsed.
Enforceable undertakings : Enforceable undertakings will not be accepted by SafeWork NSW for contravention of the industrial manslaughter offence.
Ministerial review : The Minister must review the new provisions within 18 months of commencement.
Penalties
Body corporates convicted of industrial manslaughter may be fined a maximum of $20 million. Officers found guilty of industrial manslaughter may face a maximum penalty of 25 years in jail. There is no financial penalty for individual officers.
In contrast, the maximum penalty for the existing Category 1 offence (i.e., an offence resulting from gross negligence or reckless conduct that exposes a worker to a risk of death or serious injury or illness) as of 1 July 2024 is 10 years imprisonment for an individual and $10.4 million for a corporation.
Recommendations for PCBUs and officers
Steps by PCBUs to minimise their risk of the new offence include:
pro-actively implementing appropriate systems to identify hazards, assess risks and put in place control measures;
implementing and maintaining systems for incident, hazard and risk reporting, which encourage employees and other stakeholders to raise any WHS concerns;
regular audits of the organisation’s WHS systems to ensure any gaps that need to be addressed are identified; and
incorporating WHS as an item on board agendas that is regularly discussed and managed by the senior management team.
Officers need to comply with their duty of due diligence under the WHS Act including by ensuring their PCBU is taking the steps referred to above.
For more detailed guidance or assistance in navigating these changes, contact G+T’s employment team.