Designed to provide the highest level of protection against harm to the health and safety of workers and others, the Work Health and Safety Act 2020 (WHS Act) includes an important aspect for Western Australian businesses – the introduction of the industrial manslaughter offence.
And it has big penalties, with a conviction potentially carrying up to 20 years behind bars, as well as a fine of up to $10 million for a body corporate and up to $5 million for an individual found responsible for a workplace death.
It is a significant increase from the $2.7 million fine and maximum jail term faced under the repealed Occupational Safety and Health Act 1984.
While some industries are inherently riskier than others, it is essential for all businesses to be proactive in identifying hazards and risks and ensure they have robust work health and safety systems and processes in place.
Industrial manslaughter defined
Francis Burt Chambers Barrister Cavaliere Maria Saraceni said industrial manslaughter provisions were now in most harmonised work health and safety legislation around Australia.
Under WA’s Criminal Code, manslaughter is essentially an unlawful killing where death was reasonably foreseeable but where there was no intention to kill the other person.
“Whereas under section 30A of the WHS Act, industrial manslaughter is a crime where a person conducting a business or undertaking (PCBU) breaches its health and safety duty and causes the death of an individual, knowing that its conduct was likely to cause the death of, or serious injury to, an individual yet acting in disregard of that likelihood,” she said.
“On the other hand, a corporate officer commits the crime of industrial manslaughter if the PCBU fails to comply with its duty of care and that conduct causes a death and the officer is involved in that conduct.
“Essentially where the PCBU’s conduct is attributable to any neglect on the part of the officer or the conduct is engaged in with his or her consent or connivance and the officer knows the PCBU’s conduct is likely to cause the death of, or serious harm to, an individual and he or she disregards that likelihood, causing the death of an individual.”
Ms Saraceni said the duties imposed by the WHS Act extended beyond the employment relationship, including to ensure the health and safety of others was not put at risk from work carried out as part of the conduct of a business or undertaking, as far as reasonably practicable.
“Think of the visitors to Dreamworld who died when the water ride they were on had a malfunction or the mass shootings at schools in the US,” she said.
“As part of a business’s enterprise risk management strategies, or its environmental, social and corporate governance approaches, it would be worthwhile for it to consider its health and safety obligations but not limited to its workers.”
Why the crime of industrial manslaughter was introduced
Edith Cowan University School of Medical and Health Sciences Occupational Health and Safety Senior Lecturer Dr Marcus Cattani said the substantial penalties, including imprisonment, aimed to send a clear deterrent message to the community.
“With more than 120,000 serious injuries a year in Australia, we need organisations to act before they have an injury."
“Ironically there are well known ways to prevent harm, which are often not looked at until someone gets hurt, " he said.
“Unless organisations take preventative action, they are pretty much leaving people’s safety to chance.
“The message from the government is that this is not acceptable.
Dr Cattani said almost every job had the potential for harm – for example, around one quarter of injuries are from slips, trips and falls.
“Let’s concentrate on these and we can make a big difference,” he said.
“It’s not too difficult for organisations to review how people are walking around their workplaces and making improvements to the working environment or the tasks people are doing.”
A proactive approach
To meet the legislation’s requirement to prevent injuries, Dr Cattani said it was essential for organisations to develop an agreed way to conduct its work safely, and using the international standard AS/ISO 45001 Occupational health and safety management systems is highly recommended.
“Gaining a commitment from the leadership team is a critical first step, which is reflected in the legislative due diligence requirements,” he said.
“All members of the leadership team must have a practical knowledge of what work health and safety due diligence is and how their organisation is responding.
“So, instead of an organisation tolerating people getting hurt and not doing enough about it, we can help it move towards becoming an employer of choice that people want to work for because they know their health and safety are valued.”
Dr Cattani said organisations could also implement a risk register to record what might go wrong in work tasks and a prevention strategy.
It was vital for employees to be engaged in health and safety performance improvement, with the election of a health and safety representative being one of the best ways to achieve this.
“All these things take many months to set up and implement, and then an ongoing process of improvement, which is reflected in the legislation, so they are not expected to happen overnight,” he said.
Other articles in the series:
Changing the face of health and safety in Western Australia
WHS Act 2020 - Key terms and definitions
What is a 'person conducting a business or undertaking?
How to prepare for the WHS Act 2020
Mental Health and the WHS Act 2020
Responsibilities of workers in the workplace