By Dr Laura Sowden, Partner and Annabel Cheung, Lawyer

In NSW and Tasmania there have been recent updates to industrial manslaughter laws. More diligence than ever is needed when ensuring safety under WHS laws, as serious penalties now apply across Australia.

Industrial manslaughter

Industrial manslaughter is a criminal offence, and its provisions and penalties vary from state to state.

Generally it is where:

1. A person has a health and safety duty;
2. That person has recklessly or negligently caused a death of an individual;
3. Because of a failure to ensure the safety of an individual to whom they owed a health and safety duty under Work Health and Safety laws.

The update

On 21 June 2024, industrial manslaughter laws passed both Houses of Parliament in NSW. This new offence will come into effect under the Work Health and Safety Act 2011 (NSW). The new offence prescribes a penalty of 25 years imprisonment for a PCBU individual and $20 million for a body corporate.

This is the highest penalty for a workplace health and safety breaches in Australia. NSW Work Health and Safety Minister Sophie Cotsis stressed that this is to act as a deterrent and a reminder that the NSW Government takes worker safety seriously, and that unsafe practices will not be tolerated.

Similarly on 21 June 2024, in Tasmania the State Labor Opposition’s Work Health and Safety Amendment (Safer Workplaces) Bill 2024 (the Bill) successfully travelled from the Lower to the Upper House. The Bill covers PCBUs or officers who negligently or recklessly cause the death of an individual to whom they owed a health and safety duty. The new offence has a maximum penalty of 21 years of imprisonment for a PCBU individual and $18 million for a body corporate.

The Bill states that the purpose of the new offence is to prevent workplace deaths, deter persons who owe a health and safety duty from breaching such duty, and to reflect the severity of conduct that places life at risk in the workplace.

NSW and Tasmania are the last two states in Australia to criminalise industrial manslaughter. The penalties in all jurisdictions are severe, in most cases exceeding $15m maximum penalty against a PCBU and 20+ years’ imprisonment for individual officers/PCBUs.

Third industrial manslaughter case finalised in Queensland

Narellan Pools Pty Ltd (Narellan Pools) was charged with industrial manslaughter of a foreman, and recently Queensland District Court Judge William Everson fined Narellan Pools $1.5 million.

Judge Everson found that Narellan Pools’ Work Health and Safety systems and use of safety consultants did not identify or control the risks relating to the operation of mobile cranes near pedestrian workers.

In August 2021, a Narellan Pools employee used a 12 tonne mobile crane to move a 650 kilogram fibreglass pool at its manufacturing facility in Stapylton, Queensland. As the employee was doing so, he drove into and ran over the facility’s foreman. The foreman had been acting as the dogger for the crane task and walked beside the moving crane holding the pool’s tether line. The foreman then moved to the front corner of the crane moments before he was struck. Upon investigation it was found that the employee had a history of crane safety incidents.

Judge Everson determined that Narellan Pools did not have:

• a traffic management system;
• a safe work method statement;
• documented procedures to operate the crane;
• documented procedures regarding implementing exclusion zones around the crane;
• a system of communication between crane operators and

Narellan Pools did have other Work Health and Safety systems in place, and had previously engaged consultancy firms, that were suitably qualified, to identify any Work Health and Safety risks. However, the Court held that Narellan Pools was responsible for this oversight because such an obvious workplace health and safety risk leading to a very tragic outcome was not identified anywhere prior to the accident. Judge Everson further noted that Narellan Pools acknowledged its responsibility in its guilty plea.

The Court was satisfied that these gaps were directly causative of the fatality as the oversight remained both glaring and unsurprising when looked at with the benefit of hindsight coupled with the tragic consequences for the deceased. Not only was the workplace health and safety risk not identified beforehand but the crane driver was clearly operating the crane in a dangerous manner well before the incident occurred. Further, steps had not been taken by employees of Narellan Pools, who had a responsibility to do so, to prevent this continuing.

Narellan Pools is the third entity to be convicted of industrial manslaughter in Queensland.

What does this mean?

PCBUs should review their workplace health and safety policies and procedures, ensuring proper documentation. More specifically, audits and reviews should be conducted specifically with a view of identifying any risks that could lead to fatalities.

Upon identification, there needs to be investment in improvements. There are now serious penalties of imprisonment and fines for negligence or recklessness across Australia.