Industrial Manslaughter Laws have now commenced in South Australia

On 1 July 2024, new laws making industrial manslaughter a criminal offence in South Australia commenced. The industrial manslaughter provision has been inserted as a new section (Section 30A) into the Work Health and Safety Act 2012 (SA).

With the commencement of these new laws, the South Australian position now mirrors that taken in Queensland, Victoria, Western Australia, the ACT and at Federal level with respect to criminalising industrial manslaughter. Together with the Christmas Eve 2023 introduction of provisions imposing duties on employers with respect to psychosocial hazards in the workplace,[1] the commencement of the industrial manslaughter laws in South Australia reflects the growing legislative commitment that workers arrive at work, make a contribution and then go home again each day in the same condition. Tragically, in 2023, 175 workers lost their lives at work in Australian workplaces, primarily in the industries of construction, transport, warehousing, agriculture, forestry and fishing. As of 18 July 2024, there have been 60 workplace fatalities across Australia this year.[2] This underpins the need to continually re-examine, upgrade and strengthen workplace safety laws, which the new provisions are designed to do.

What is industrial manslaughter?

In broad terms, industrial manslaughter is an offence where an employer or ‘a person conducting a business or undertaking’ (‘PCBU’) knew or ought to have known that an act or omission in contravention of their health and safety duties would create a risk of serious harm to a person. Industrial manslaughter is established when the contravention of that duty causes the death of the person to whom that health and safety duty was owed.

Back to first principles – who owes what to whom?

Businesses and employers are known under the Work Health and Safety Act 2012 (SA) as PCBUs. PCBUs owe duties to employees, contractors and visitors to the work site to take reasonably practicable steps to eliminate or minimise risks to physical and psychosocial health and safety.

Determining what is reasonably practicable in the context of physical or psychosocial safety involves a risk assessment of what could reasonably be done at a point in time, with reference to a number of relevant matters and factors. These include:

• the likelihood of the hazard or risk concerned occurring;
• the degree of harm that might result from the hazard or the risk;
• what is known or ought reasonably to be known about the hazard or risk and how it might be eliminated;
• the availability and suitability of ways to eliminate or minimise the risk; and
• after assessing all of that, the cost of means to eliminate or minimise the risk, including whether the cost is grossly disproportionate to the risks.

The new industrial manslaughter provisions do not change this existing regime. Rather, they set out what it means when a breach of the duty to take reasonably practicable steps causes the death of an individual to whom that duty was owed, through conduct that is either grossly negligent or reckless as to the risk of death or serious injury or illness to the individual. The two-year statute of limitation applicable to other causes of action within the Work Health and Safety Act 2012 (SA) does not apply to industrial manslaughter.[3]

As well as PCBUs, workplace officers can be charged with this offence (it is not applicable to workers). Officers are not health and safety officers, but people including: (1) directors or company secretaries; (2) people who make or participate in making decisions that affect the whole, or a substantial part, of the business of the corporation; (3) people who have the capacity to significantly affect the corporation’s financial standing; or (4) people in accordance with whose instructions or wishes the directors of a corporation are accustomed to act. Officers, have duties that require them to be proactive about physical and psychological safety and are specifically referenced in the new industrial manslaughter provisions, meaning it is critical that officers:

• educate themselves as to the state of Work Health and Safety legislation and their own duties, including, importantly, the new industrial manslaughter provisions;
• ensure that the business is appropriately resourced to manage risks to physical and psychological safety;
• ensure that those resources are being effectively used;
• ensure the business has effective reporting processes for incidents and hazards and that staff know these processes are available, where to access them and how to use them; and
• continually monitor the effectiveness of those processes.

What do the new provisions say?

Section 30A sets out the criteria to be established for industrial manslaughter. It is important to note that the criteria are not alternatives – all four must be established. The only alternative is the nature of the conduct; that is, whether it is grossly negligent or reckless:

(1) A person (being a person conducting a business or undertaking or an officer of a person conducting a business or undertaking) commits and industrial manslaughter offence if:

(a) the person has a health and safety duty; and

(b) the person engages in conduct that breaches that duty; and

(c) the conduct causes the death of an individual to whom that duty is owed; and

(d) the person – (i) engages in conduct with gross negligence; or (ii) is reckless as to the risk to an individual of death or serious injury or illness.

It is enough that the conduct substantially contributes to the death.

The maximum penalty for industrial manslaughter in the South Australian legislation is 20 years imprisonment, if the offence is committed by an individual as a person conducting a business or undertaking, or as an officer of a person conducting business or undertaking. In the case of a body corporate, the maximum fine is $18 million.

The new provisions also introduce various lower categories of offences (which have reduced penalties). If, at a trial, the trier of fact is not satisfied that the offence as charged has been made out but is satisfied that a lesser offence has occurred, the trier of fact may bring a verdict on that basis. The categories are of critical importance because they adopt a risk-based approach in which an offence may be committed on the basis of a risk of death or serious injury (i.e. a death or serious injury need not occur for the offence to be made out):

• Category 1 — gross negligence or reckless conduct, which occurs if a person has, and breaches, a health and safety duty without reasonable excuse, by engaging in conduct that is either grossly negligent or reckless as to the risk of death or serious injury or illness to an individual, and that exposes an individual to whom that duty is owed to a risk of death or serious injury.
• Category 2 — failure to comply with a health and safety duty, which occurs if a person has a health and safety duty with which they fail to comply, and that failure exposes an individual to a risk of death or serious injury.
• Category 3 — failure to comply with a health and safety duty, which occurs if a person has a health and safety duty with which they fail to comply. In Category 3, there is no requirement that the failure to comply creates a risk of death or serious injury.

Important: Although PCBUs and officers should be motivated to comply with health and safety duties without the threat of a financial penalty, the potential penalty for a Category 3 offence of $100,000 for officers and $500,000 for bodies corporate underscores the significance with which breaches of those duties will be taken; a breach may be a compensable breach, even if it does not lead to an immediate risk. See below for an outline of things your business should be continually thinking about to ensure wholesale compliance with workplace physical and psychological safety duties and laws.

Recent cases

Convictions for industrial manslaughter have been secured in multiple jurisdictions in Australia. In 2020, Queensland became the first Australian jurisdiction to impose a conviction and fine for an industrial manslaughter offence, with a PCBU fined $3 million and two directors issued with 10-month suspended sentences for causing the death of a worker.[4] In this case, the PCBU was found to have no written safety policies or procedures and had failed to ensure that workers operating forklifts were properly licensed.

Then in February 2024, a Victorian company in the business of stone masonry was convicted and fined in the Victorian Supreme Court in connection with the death of a worker who was sadly crushed by a load falling from a forklift.[5] The finding was one of negligent conduct, in that there had been a failure by the PCBU to ensure the forklift was operated properly such that the standards of care applied fell well short of what a reasonable person in the circumstances might expect. In that case, the company’s sole director was also convicted, resulting in community service and the payment of compensation to the worker’s family.

Going forward, PCBUs and officers should assume that in the unfortunate event of a workplace fatality, their conduct will be heavily scrutinised through the industrial manslaughter lens. What will also be particularly interesting is how the interplay between the new industrial manslaughter provisions and the Work Health and Safety (Psychosocial Risks) Amendment Regulations 2023 (SA) will be viewed by the courts, which is a timely reminder for those businesses that may not as yet have properly considered their compliance requirements under that legislation.

What should PCBUs and officers do now?

PCBUs and officers should routinely review and test safety policies and procedures. If your business has not re-examined this so far in the 2024 financial year, the commencement of Section 30A of the Work Health and Safety Act 2012 provides a good impetus to do so:

• What health and safety policies and procedures does the business have in place and when were they last reviewed?
• Have you updated them to reflect the December 2023 psychosocial hazards regulations and the new industrial manslaughter provisions?
• Are the procedures and policies effective?
• Are the record keeping practices of the business working — does the business have records evidencing compliance with the legislation, including the reporting and investigation of incidents and near misses?
• Do staff know about them and have they been properly trained in how to comply with them?
• Who are the company officers? What steps have they taken to educate themselves in relation to the new industrial manslaughter provisions?
• Has the executive lead team met to discuss what the new industrial manslaughter provisions mean for the business? Has the internal or external legal team been engaged to advise on what changes or improvements the business needs to make to ensure compliance?
• Do workers and officers know what to do if a physical or psychological incident does take place?
• Does the business have a fair and just culture which encourages employees to speak up if they are concerned about physical or psychological hazards and safety?
• Are the reasonably practicable steps the business has been taking to eliminate or minimise risks to physical or psychosocial safety still effective? Do they need to be updated and could the business do more?
• If the business operates heavy machinery or does other work that requires workers to be licensed, are all applicable workers validly licensed?

Although the new industrial manslaughter provisions do not impose any new duties that are not already owed under the existing regime, they are an indication that the longstanding trend of improving and strengthening workplace health and safety continues. Importantly, they are a timely reminder to businesses that the workers contributing to the success of organisations are human beings who deserve to perform their duties in a safe and healthy environment, where physical and psychological safety is the number one priority for the PCBU and its officers.

[1] Work Health and Safety (Psychosocial Risks) Amendment Regulations 2023

[2] https://data.safeworkaustralia.gov.au/interactive-data/topic/preliminary-fatalities-2024

[3] See below for an explanation of the lesser offences — Category 1, Category 2 and Category 3, to which the limitation does apply.

[4] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113

[5] DPP v LH Holding & Hanna [2024] VSC 90