Individuals could face up to 20 years in prison, while employers could be fined up to $18 million
Earlier this year, the South Australian government introduced a bill that proposes tougher penalties for employers if an employee dies in the workplace.
Under the Work Health and Safety (Industrial Manslaughter) Amendment Bill, individuals could face up to 20 years in jail, while companies can be fined by up to $18 million if they are reckless or grossly negligent in conduct which breaches a work health and safety duty and results in someone’s death.
“Industrial manslaughter laws recognise that, while tragic workplace incidents do occur from time to time, it’s not an accident when people deliberately cut corners and place worker’s lives at risk,” Kyam Maher, South Australia’s attorney-general said. “It’s a crime and it will be treated like one.”
But what exactly will the bill mean for employers if it’s passed?
“The bill doesn't change the work, health, safety (WHS) duties that an employer owes its workers under the legislation,” John Love, employment and workplace law partner at Mellor Olsson Lawyers, told HRD Australia.
“But what it does is that when there’s a breach of those existing duties that results in a death of a worker and the breach of those duties was reckless or grossly negligent, then that can result in a maximum prison term of up to 20 years for an individual and a fine of up to $18 million for the company.”
Love added that the new bill is something that all industries should take note of.
“There's obviously some industries with a higher risk and profile because of the nature of the work,” he said. “And they should obviously be ensuring that they've got the best safety processes in place to make sure that they're compliant with their work, health, safety obligations and duties.”
The introduction of the bill brings South Australia in line with other states and territories that have made industrial manslaughter a crime, including Victoria, Queensland, Western Australia and the ACT.
“Tasmania and New South Wales will be the only two states without these laws,” Love said. “But New South Wales has indicated that they intend to introduce laws along these lines. And there was an attempt I think in 2021 by New South Wales which didn't pass. But I think Tasmania is the only state that has not indicated an intention to pass [the law].”
In 2022, Queensland convicted its first individual for industrial manslaughter. The employer operated a business that involved repairing and maintaining electrical items, including generators. Following a four-day trial, the employer was sentenced to a five-year imprisonment with the benefit of suspension after a certain period.
Communities want strong penalties for reckless and negligent behaviour that results in a death in the workplace, he said.
“There’s just an increasing trend in the community to not accept people dying at work and wanting to see some fairly significant penalties introduced for how to deal with situations where someone dies at work as a result of reckless behaviour of the employer or gross negligence of the employer.”
With the proposed law being introduced, businesses should review whether their systems are still compliant, Love said.
“It would be sensible to review all existing health and safety policies and processes to make sure that they're best practice,” he said. “And ensuring they comply with any requirements in the WHS legislation and regulations.
In Australia, most employers do the right thing, he said.
“And while these laws are a good opportunity for employers to revisit their existing policies and systems to make sure they're compliant, the reality is these laws are really targeted at that very, very small number or minority of cases where there's a terrible event at work resulting in someone's death. And the employer is either reckless or grossly negligent in contributing to that.
“But I still think it presents an opportunity for everyone that has workers, as per the definition of the act, to review all their systems and processes to make sure that they’re compliant.”
