By Patrick Walsh, Partner

Industrial Manslaughter provisions in the Work Health and Safety Act 2012 (SA) (the Act) commenced on 1 July 2024.  These provisions carry a maximum penalty of up to 20 years in prison and fines of up to $18 million.

These laws will apply to officers and PCBUs that are found to have caused the death of a worker through reckless or grossly negligent breach of the Act.  Importantly, the prosecution of offences under these provisions will not be subject to a 2-year limitation period from the date of the offence.

The Work Health and Safety (Review Recommendations) Amendment Bill 2024 has also now passed both Houses of the South Australian Parliament, with the commencement of the amendments to be fixed by proclamation.  These changes will include:

• Permitting entry permit holders to take photos and videos directly relevant to the suspected contravention;
• Removing the requirement for an entry permit holder to provide a written report to SafeWork SA after exercising their rights, although an entry permit holder may choose to submit a written report (in which case SafeWork SA will be required to advise of any action taken as a consequence of the report);
• The creation of a jurisdiction for the South Australian Employment Tribunal (constituted as an industrial relations commission) to deal with disputes relating to:
  • Access to information by a health and safety representative;
  • A request by a health and safety representative for an assistant to have access to the workplace;
  • An issue to which Part 5, Division 5 of the Act applies; and
  • An issue with respect to the cessation of work under Part 5, Division 6 of the Act.
• A prohibition on insurance policies that cover the liability for all or part of any pecuniary penalty under the Act; and
• Broader powers to disclose information relating to an incident to:
  • A person injured in an incident or their representative;
  • A family member of a deceased person killed in an incident;
  • A family member empowered to make decisions on behalf of a person who is incapacitated in an incident; and
  • An interested party who has a direct connection to the incident if the regulator reasonably believes the disclosure would assist in the administration of the Act.

These amendments will have wide ranging practical implications for compliance with, and enforcement of, the Act.