Industrial Manslaughter and You: The Work Health and Safety Bill

By now you may be aware of the Western Australia’s Government’s intention to introduce the model Work Health and Safety laws which have already been implemented across Australia, except for Victoria and Western Australia.

The vehicle for the change is the Work Health and Safety Bill 2019 (the Bill), currently having had its second reading in the Legislative Council.

But what does this mean for you? What is changing and why is the term “Industrial Manslaughter” getting thrown around?

This article will explain some of the basics of what changes to expect and what the proposed new offense of “Industrial Manslaughter” means.

Modernisation of The Law

Western Australian has two work safety law regimes, the Occupational Safety and Health Act 1984 (the OSH Act) and the Mines Safety and Inspection Act 1994 (the MSI Act). The Bill brings these laws together whilst adopting much of the model Work Health and Safety laws.  The objectives of the Bill is said to provide a balanced and nationally consistent framework to protect the health and safety of workers, improve safety outcomes in workplaces, reduce compliance costs for businesses and to improve efficiency for regulatory agencies.

The Bill also includes some other key reforms, such as a prohibition of insurance against fines imposed for a work health and safety offence as well as the introduction of a charge of industrial manslaughter.

Industrial Manslaughter

Previously, the term “industrial accident” was commonly used to describe an incident resulting in death at the work place. However, this term implied no causality and no culpability, something that, while significant and terrible, indicated no error or reasonability to be assigned.

The government recognises that workplace injuries and deaths are mostly caused by, but not limited to, a combination of factors, including poor system design, bad behaviour as well as poor and improper choices.

The proposed industrial manslaughter laws are split into two different categories, one being a “crime” and the other a “simple offense”. The table below highlights some of the main points and differences.

Industrial Manslaughter
The Person:CrimeSimple Offense
Has a health and safety duty (the Duty) as a person conducting a business or undertakingYesYes
Engages in conduct that causes the death of an individualYesYes
The conduct constitutes a failure to comply with the DutyYesYes
The conduct was engaged knowing it would likely cause the death of an individual and that likelihood was disregardedYesNo
Maximum Penalty
Individual

20 years imprisonment

$5,000,000 fine

10 years imprisonment

$2,500,000 fine
Body corporate$10,000,000 fine$5,000,000 fine

Previously, an offence under the MSI Act and the OSH Act which resulted in a death of an employee would draw a fine of up to $500, 000.

There are few important things to note from the Bill:

  1. More than one person can concurrently have the same duty.
  2. The duties that apply cover persons conducting businesses or undertakings, officers as well as workers and any person at the workplace.
  3. The duties appear quite loosely defined, such as, a duty to take reasonable care that a person’s actions do not adversely affect the health and safety of another person. Neither “reasonable care” or “adversely affect” is clearly defined, which means it could be open to a number of different interpretations.
  4. The test for whether or not a simple offence has been committed involving death at a workplace is simply whether or not a person had a health and safety duty and whether or not the person has failed to comply with that duty.

Any knowledge or any mental element is not necessary for the evidentiary threshold to be passed.

Difference to Other Jurisdiction

While one of the intentions of the new laws is to bring harmony to work health and safety laws used throughout Australia, the reality is the law in the different jurisdictions reflect otherwise.

For example, in the Northern Territory, the maximum penalty of the offense is life imprisonment and $10,205,000 while in Victoria, the maximum fine for a body corporate is $16,522,000 once its proposed laws come into effect on 1 July 2020.

Additionally, as mentioned above, the Bill provides that an offense will have been committed if an individual, or organisation, has a health and safety duty and simply fails to comply with that duty and subsequently causes the death of an individual.

While jurisdictions like Victoria have proposed laws that consider conduct as negligent only if it involves “a great falling short of the standard of care”, the Bill does not provide for the degree of the failure to comply with a person’s duty before it becomes an offence, just that the duty wasn’t complied with.

One of the health and safety duties imposed on a person with “management or control of a workplace” is to ensure that the means of entering and exiting a workplace and anything arises from the workplace are without risk to health and safety of any person.

This appears to set the bar relatively low when it comes to establishing whether or not there is a duty that can be breached. With no definition as to what properly constitutes a failure to comply with that duty, we may be seeing a claim of industrial manslaughter for any cause of death at a workplace.

Where to next with your work health and safety measures?

No two work environment are alike and, after considering all the variable factors and different management styles of different organisations, very few are even similar.

At Bailiwick Legal we can assist employers in assessing their rights and obligations, as well as assist in drafting work health and safety policies and procedures.

Every employment situation is different, which is why policies and procedures should reflect your business and your management style.

For further information in relation to work health and safety obligations for your business or other assistance with your employment matters, please contact us on (08) 9321 5451 or by email admin@bailiwicklegal.com.au. For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au.

The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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