WHS Act JacMac Review Series - Industrial Manslaughter

Overview

One of the most controversial and debated aspects of the new Western Australian WHS Act (WHS Act) is the offence of Industrial Manslaughter, and the very significant penalties attached to that offence.


Contents

Key Points
 

  • The WHS Bill available on the Parliamentary Website refers to two Industrial Manslaughter offences, Industrial Manslaughter - simple offence and Industrial Manslaughter – Crime.
     
  • Recent amendments by the Legislative Council have removed the offence of Industrial Manslaughter – simple offence.
     
  • The remaining Industrial Manslaughter offence is equivalent to the existing Gross Negligence provisions under the Occupational Safety and Health Act (WA) 1984 (OSH Act), only with significantly increased penalties.
     
  • Company Officers have personal liability under the Industrial Manslaughter provisions of the proposed WHS legislation.
     
  • The final WHS Bill is due to be voted upon on 3 November 2020 in the Legislative Assembly.
     

One of the most controversial and debated aspects of the new Western Australian WHS Act (WHS Act) is the offence of Industrial Manslaughter, and the very significant penalties attached to that offence.

Health and safety legislation create obligations for different parties and entities, for example, a Person Conducting a Business or Undertaking (PCBU) under the WHS Act has obligations to ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person while they are at work in the business or undertaking. Similarly, Company Officers have obligations under the WHS Act to exercise due diligence to ensure that the PCBU complies with their duties 

The different parties with obligations under the Act are often called “duty holders” – because they have duties under the Act.
 

Highest Penalties under current laws
 

Under the existing OSH Act, the most serious offence for a breach of health and safety duties is an offence of “gross negligence”.

Gross negligence arises when a duty holder breaches their obligations under the OSH Act, and they:

  • knew that the contravention would be likely to cause death of, or serious harm to, a person to whom the duty was owed;
  • acted or failed to act in disregard of that likelihood; and
  • the contravention did in fact cause the death of, or serious harm to, such a person.

If the offence was committed by a body corporate, a manager or officer of the body corporate could be convicted of the same offence if it could be proven the offence happened with the consent or connivance of, or was attributable to any neglect on the part of, the manager or officer. This liability is usually referred to as “accessorial liability”.

The following penalties currently apply for gross negligence offences under the OSH Act:

  First Offence Subsequent Offence
Individual Fine of up to $550,000 & imprisonment of up to 5 years Fine of up to $680,000 & imprisonment of up to 5 years
Body Corporate Fine of up to $2.7M Fine of up to $3.5M

 

Changes – introduction of industrial manslaughter offences
 

The WHS Bill contains provisions which combine the gross negligence and accessorial liability provisions into two new Industrial Manslaughter offences

While the obligations or duties have not materially changed with the introduction of the Industrial Manslaughter offence, there are some changes worth noting.

First, the scope of managers who can be charged under Industrial Manslaughter is more limited than under the gross negligence provisions. Under the WHS Act, “officers” are relevantly defined as:

  • officers within the meaning of section 9 of the Corporations Act 2001 (Cth); and
  • a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public corporation.

Under the OSH Act, the relevant duty holder definition is broader and includes any director, manager, secretary or other officer of the body. The OSH Act provisions covered a broader range of “managers” than will be captured by the WHS Act.

Second, under the OSH Act, the body corporate must be prosecuted and convicted before a manager or officer could be convicted. That is not necessary under the Industrial Manslaughter provisions. The body corporate does not have to be prosecuted and convicted – although it is still necessary to prove that the body corporate breached a relevant duty.

Third, the penalties for breaches of industrial manslaughter are significantly higher than for gross negligence offences.

As mentioned, the WHS Bill proposed two offences of Industrial Manslaughter:

  • Industrial Manslaughter – simple offence;
  • Industrial Manslaughter – crime.
     
Industrial Manslaughter – simple offence
 

Under the Industrial Manslaughter – simple offence, a person commits an offence if:

  • the person has a health and safety duty as a PCBU; and
  • the person fails to comply with that health and safety duty; and
  • the failure causes the death of an individual.

A company officer of the PCBU commits an Industrial Manslaughter – simple offence if the above elements are proven and the PCBU’s “failure” is:

  • attributable to any neglect on the part of the officer; or
  • is engaged in with the officer’s consent or connivance.

However, amendments moved in the Legislative Council have removed the Industrial Manslaughter – Simple offence, leaving only one offence of Industrial Manslaughter. [1]

Industrial Manslaughter 
 

The remaining Industrial Manslaughter provision picks up the elements of gross negligence from the OSH Act.  

In other words, under the Industrial Manslaughter provision, a person commits an offence if:

  • the person has a health and safety duty as a PCBU;
  • the person fails to comply with that health and safety duty;
  • the failure causes the death of an individual; and
  • the person engages in the conduct knowing that the conduct is likely to cause the death of an individual and engages in conduct in disregard of that likelihood.

Similarly, a company officer of the PCBU commits an Industrial Manslaughter if the above elements are proven and the PCBU’s “failure” is:

  • attributable to any neglect on the part of the officer; or
  • is engaged in with the officer’s consent or connivance; and
  • the officer engaged in the relevant conduct knowing the conduct was likely to cause the death of an individual and engaged in the conduct in disregard of that likelihood (i.e. gross negligence).
     

Penalties for industrial manslaughter
 

Individual Imprisonment for up to 20 years and a fine of up to $5M
Body Corporate Fine of up to $10M

 

Thoughts …
 

The Industrial Manslaughter provision does not create any new duties compared to the OSH Act. 

The offence of gross negligence has been in the OSH Act since 2004, however there has only been 1 completed prosecution for gross negligence since then. Any prosecution against a PCBU for an offence of Industrial Manslaughter – crime will not be materially different from how gross negligence cases are prosecuted in Western Australia now.

However, as can be seen from above, the penalties are far more significant.

Notwithstanding that gross negligence has been part of health and safety legislation in WA since 2004 there is very limited authority to guide us in how this will be applied.

Resource Recovery Solutions Pty Ltd
 

The Case involving a recycling company, Resource Recovery Solutions Pty Ltd, was brought after a worker had his arm amputated at the shoulder when was caught in the crush point of a conveyor belt. Relevantly, however, the company was described as having a long history of flouting workplace safety laws and failing to guard dangerous machinery despite previous serious injuries and instructions by Work Safe.

The case was prosecuted in the Perth Magistrates Court, and unfortunately there is no published decision, however you can read the press release put out by Work Safe about the decision by following the link below:

https://www.commerce.wa.gov.au/announcements/waste-recycling-company-found-guilty-gross-negligence-over-arm-amputation

The accessorial liability provisions which create personal liability for company offices under the WHS Act – consent, connivance and neglect – are not new and are reasonably well known in a Western Australian health and safety context. There have been at least 14 prosecutions involving accessorial liability provisions, and two of those cases, which were appealed to the Supreme Court, give us some insight into how the accessorial liability provisions are applied in practice.

You can read a summary of the two cases at the following links:

Case Summary | Fry v Keating [2013] WASCA 109

Case Summary | Morrison v Atlas Group BC9606040 (Unreported judgement of the Western Australian Supreme Court) 

 

What does this mean?
 

As we pointed out in our last article, it is clear that social and regulatory expectations around WHS have shifted, and Western Australia is adopting a stronger enforcement stance when it comes to WHS.

Considering these shifts, coupled with the proposed changes in the WHS Act, organisations should be acting now and investing more time and effort into understanding whether their systems to manage health and safety (i.e. systems to manage the hazards associated with the business) work. Are your safety management systems the right systems to manage the hazards in your business, are they well implemented and are they effective to manage the hazards?

This should not just be considered in the light of managing legal responsibilities – it is a key foundation for keeping people safe.

At a senior executive level, there should be robust and consistent challenge to the way the organisation reports on health and safety and informs executive management about the health and safety processes in the organisation.

Executive management should demand good evidence that those systems:

  • are the right systems to manage the hazards in the business,
  • are implemented; and
  • are effective.

Jackson McDonald will be preparing a series of papers, video presentations and seminars looking at the WHS Act and its impact over the coming months.

We are conducting our first seminar to discuss the WHS Act for 19 November 2020.  If you would like information about our seminar or information about your obligations and what your organisation needs to do contact Renae Harding on rharding@jacmac.com.au or Greg Smith on gsmith@jacmac.com.au.

 

Please click here if you would like to view our short video on this topic.

 

[1] Note: A copy of the amended WHS Bill was not available on the Parliamentary web site when we were preparing this article.

Contact Information
Renae Harding
Partner at Jackson McDonald
rharding@jacmac.com.au
Greg Smith
Special Counsel at Jackson McDonald
gsmith@jacmac.com.au


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