Industrial Manslaughter (ACT)

Industrial manslaughter occurs when a person dies at work due to negligence by an employer. The Australian Capital Territory was the first state or territory to introduce industrial manslaughter as an offence, in 2004, adding it to the Crimes Act 1900.

The law

Section 49C states an employer commits an offence if:

• a worker dies in the course of employment by, or providing services to, or in relation to, the employer; or
• is injured while doing this and later dies; and
• the employer’s conduct caused the death; and
• the employer is reckless about causing serious harm to the worker, or any other worker, by the conduct; or
• negligent about causing the death of the worker, or any other worker, by the conduct.

The offence carries a maximum fine of 2000 penalty units ($320,000 for a person, or $1,620,000 for a company), or 20 years imprisonment, or both.

Section 49D creates an offence specific to a “senior officer”, a definition which includes a senior officer includes a government minister, a CEO of a government entity, a company officer, or a person in an executive position who makes or takes part in making, decisions affecting all or a substantial part of the entity’s functions. The offence carries the same maximum penalties as an offence committed by an employer.

“Conduct” can be an omission to act if it is a failure by an employer or senior officer to perform their duty to avoid or prevent danger to the life, safety or health of a worker.

Extra penalties

The Act gives the court the power to order a company to take actions in addition to penalties imposed. The company can be ordered to:

• publicise the offence, the deaths or serious injuries that resulted, and any penalties imposed (for instance in a newspaper or on television);
• notify specified people, such as shareholders, of the offence, the deaths or serious injuries that resulted, and any penalties imposed;
• establish or carry out a stated project for the public benefit, even if the project is unrelated to the offence, up to a cost of $5,000,000.

Prosecution for industrial manslaughter

The industrial manslaughter offence has not yet been prosecuted in the ACT. However, the offence of criminal manslaughter in a workplace was considered in R v Watts (2020).

In 2016, crane operator Watts was instructed to use a crane to transport a generator at a worksite. In performing the lift, Watts operated the crane when it was overloaded, at night with reduced visibility and on uneven terrain. The crane overturned and the generator crushed a worker. Watts was initially prosecuted for manslaughter but this was not pursued when he expressed a willingness to plead guilty to an offence under section 31(1) of the Work Health And Safety Act 2011. He pleaded guilty to engaging in conduct, without reasonable excuse, that exposed an individual, to whom he owed a work health and safety duty, to a risk of death or serious injury or illness, and he was reckless as to the risk. Watts was sentenced to 12 months imprisonment, wholly suspended on a 12-month good behaviour order.

Lessons for business

A workplace death can have long-lasting effects on the person’s family, work colleague and the company’s reputation. Companies can take steps to ensure their workplace is safe, such as:

• reviewing and updating (where needed) health and safety policies and procedures;
• conducting a safety audit to identify potential hazards and safety risks;
• reviewing all safety systems and controls to ensure effectiveness;
• offering regular health and safety training sessions and advice to all employees;
• ensuring all employees are adequately qualified and trained for their roles;
• ensuring a proper safety induction for all new employees;
• preparing, filing and reviewing records on workplace health and safety;
• reviewing insurance coverage for the company;
• fostering a proactive approach and a safety culture at the company.

Industrial manslaughter legislation in other states and territories

Queensland introduced industrial manslaughter as an offence in 2017. The maximum penalty is 20 years imprisonment for a person, or 100,000 penalty units ($13,345,000) for a company.

Victoria enacted industrial manslaughter law in 2020. The maximum penalty is 25 years imprisonment for a person, or a fine of 100,000 penalty units ($16,522,000) for a business.

The Northern Territory also enacted industrial manslaughter law in 2020. The maximum penalty is life imprisonment for a person, or a fine of 65,000 penalty units ($10,270,000) for a business.

Western Australia also enacted industrial manslaughter law in 2020. The maximum penalty is 20 years imprisonment for a person, and a fine of $5,000,000, or for a business, a fine of $10,000,000.

As of June 2021, New South Wales was debating a bill to create an industrial manslaughter offence.  South Australia and Tasmania were not planning to introduce specific industrial manslaughter legislation. Employers in these places can still be prosecuted for workplace deaths under criminal manslaughter laws and general workplace safety laws.

For advice or representation in any legal matter, please contact Armstrong Legal.