If you are an Employer, you need to know this. New laws passed to prosecute employers for industrial manslaughter

The recent tragic death of Jonnie Hartshorn, 23, whilst working on a building site at Curtin University has brought the Work Health and Safety Bill 2019 (“Bill”) back into sharp focus of West Australians.

Western Australia’s parliament has reacted by clearing the way for industrial manslaughter laws which will enforce a maximum penalty of 20 years’ imprisonment for workplace deaths.

The long-anticipated Bill was passed in the upper house on the 21st of October 2020 after a robust debate.

It is anticipated that the Bill will be signed off in the lower house next month and the new laws enacted in 2021.

The new laws will be supported by a number of industry specific regulations to suit the State’s unique conditions, the intent being to enable the resources sector to continue to use a risk-based approach, and continuing to support the safety-case approach for petroleum and major hazard facilities.

What the new laws mean for Employers

As explained in the explanatory memorandum to the Bill, the key features of the new laws include:

  • a primary duty of care requiring “persons conducting a business or undertaking” (referred to as “PCBUs”) to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work;
  • duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work, including the providers of work, health and safety services;
  • a requirement that ‘officers’ exercise ‘due diligence’ to ensure compliance;
  • reporting requirements for ‘notifiable incidents’ such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking; and
  • a framework to establish a general scheme for authorisations such as licences, permits and registrations (e.g. for persons engaged in high risk work or users of certain plant or substances) including provisions for automated authorisations.

The new bill includes two separate offences for industrial manslaughter:

  1. Industrial Manslaughter – Crime provides for the highest penalties for work health and safety offices including imprisonment of 20 years and a fine of $5 million for a PCBU. Companies who knowingly engage in conduct resulting in an employee’s death on site face a fine of $10 million. Charges of Industrial Manslaughter will be processed in the District Court and require the prosecution to establish that the person engaged in the conduct that caused the death of an individual knowing that the conduct was likely to result in death, and proceeded in disregard of the likelihood.
  2. Industrial Manslaughter – Simple Offence. This charge attracts lesser penalties and will be heard in the Magistrate’s Court as a simple offence. The maximum penalties for a PCBU convicted of the simple offence is 10 years imprisonment and a fine of $2,500,000 for an individual PCBU, or $5,000,000 for a body corporate. For Industrial manslaughter – simple offence, the prosecution must prove that the person failed to comply with a health and safety duty that caused the death of an individual.

The new laws will not be enforced retrospectively.

The new laws will also make it illegal for insurance companies to indemnify entities against monetary penalties imposed under workplace health and safety laws.

If you would like to know more about the new laws, or seek legal advice on employment or work, health and safety issues, please contact Julie Grant at julie@capital-legal.com.au.