Industrial manslaughter has recently become an offense in NSW, introducing significant penalties for individuals and persons conducting a business or undertaking, or PCBUs, found to have exhibited gross negligence leading to a workplace death.

The NSW government has not yet announced when industrial manslaughter will come into force, but we know it will carry maximum penalties of $20 million for a body corporate and 25 years imprisonment for an individual.

Therefore, it’s crucial for business owners and employers operating in high-risk industries, including manufacturing and construction, to understand what industrial manslaughter is, how they may be impacted if found guilty of it, and ways they can ensure their workplace is safe.

Industrial manslaughter is a new offence, not a new obligation

The Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 was assented to on 24 June 2024, meaning it was approved and adopted by NSW parliament and signed into law.

As the name implies, it’s an amendment to the Work Health and Safety Act 2011 (NSW) that introduces the offence of industrial manslaughter. Interestingly, NSW was the last mainland state in Australia to do this.

Essentially, it’s designed to enforce harsher penalties on individuals and PCBUs who fail to meet their obligations to employees and workers under the WHS Act, without changing these obligations.

So, what constitutes gross negligence, and thus industrial manslaughter when it comes to a workplace death in NSW?

At this point in time, the legislation doesn’t define it, although negligence is generally defined as a failure to fulfil a duty of care. To prove negligence in court, there must be sufficient evidence of two things:

• The first is inadequate management, control or supervision of work and persons at work. Examples include supervisors not having the experience or ability to do their jobs effectively, or rigid processes that can’t be adapted as necessary when situations change.
• The second way negligence can be proven is when there aren’t adequate systems to communicate health and safety-related information in the workplace. This could be a lack of regular training sessions or infrequent communication of policies and procedures that reduce the risk of injury.

It’s likely that a definition for gross negligence won’t be added to the legislation until the courts make either a determination or set a precedent, which would, unfortunately, result from the first charge of industrial manslaughter being laid.

Additionally, there’ll be no statute of limitations for prosecuting industrial manslaughter offences, meaning charges can be laid at any time following the offence, regardless of how long it’s been.

While the NSW government is celebrating the industrial manslaughter offence as a win for worker safety in the state, the hope is that it will be a sufficient deterrent for negligence and won’t be needed.

For businesses, a potential industrial manslaughter charge is a strong and scary reminder to ensure policies and procedures are compliant with the WHS Act – especially for those in the construction and manufacturing sectors, where the risks are higher.

Having a strong health and safety culture is non-negotiable

Preliminary data from Safe Work Australia on deaths in Australian workplaces this year estimates that as at 15 August 2024, 77 workers have been killed at work. Of these fatalities, 10 have occurred in the construction industry, and four in manufacturing roles.

It’s very likely that these deaths could have been prevented if the right policies and procedures were implemented and followed. This is why it’s so important for business owners, managers and employers to build a strong health and safety culture, which can be done by following these steps:

• Assess workplace hazards routinely and proactively to keep them under control. Once hazards are identified, undertake regular reviews to check the risk minimisation controls remain effective.
• Conduct frequent assessments of health and safety performance and the overall management of health and safety in the workplace. That way, you’ll have some peace of mind that if anything happens, it will be handled correctly and compliantly.
• Confirm that workers know how to do their job safely and encourage them to actively participate in the overall management of health and safety in the workplace. Communicate and consult with them often and foster and environment where employees are encouraged to raise issues without fear of retribution.
• Create and implement effective internal reporting procedures, particularly in relation to incidents and near misses, to stop them happening again. Comprehensive and robust reporting and recording systems, including accessible records and reports, are the backbone of any safe workplace.

Being prosecuted for industrial manslaughter would result in serious consequences for any business, but it’s very likely that a small business in NSW would not survive this conviction due to the financial and reputational damage it would inflict.

Business owners and employers, particularly those in dangerous industries like construction and manufacturing, would be wise to seek expert advice on their workplaces and ensure they’re meeting their obligations under the WHS Act – before it’s too late.

By Jude Taylor, Associate Director Health & Safety Operations at Peninsula Australia and Peninsula New Zealand

Jude Taylor is Associate Director, Health & Safety Operations (ANZ) at Peninsula, leading the work, health, and safety advice team in delivering services to thousands of SME business owners and employers across Australia and New Zealand. She has two decades of experience in health, safety, and wellbeing across multiple industries, including senior leadership roles in organisational safety, facilities management, hospitality, aged care, airlines, aerodromes and ground handling.

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