Is industrial manslaughter legislation imminent in NSW?



Get your OH&S house in order with our compliance tips

Robert Rodgers

With industrial manslaughter now an offence in several States, and cases against employers underway in Queensland, NSW employers need to prepare for the possibility of similar legislation being introduced here.

What is industrial manslaughter?

Industrial or workplace manslaughter refers to circumstances in which an employee dies or is seriously injured while at work. While penalties for industrial manslaughter vary by State, they exist to deter employers from cutting any corners when it comes to OH&S compliance.

Industrial manslaughter legislation is now in force in the ACT, Queensland, the Northern Territory, Victoria and Western Australia.

NSW industrial manslaughter Bill

In NSW, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 (the Bill) was introduced by the Opposition as a private members bill into the upper house. The Bill seeks to add industrial manslaughter offences to the Work Health and Safety Act 2011 (NSW). Following debate and amendment in November 2021, the bill has returned to the NSW lower house for debate, although it will lapse if not passed by 27 May 2022.

Under the proposed offences, persons conducting a business or undertaking (PCBUs) and senior officers could be charged with industrial manslaughter if the death was caused by the unreasonable conduct of the PCBU and/or senior officer which was also undeniably (grossly) negligent or reckless in contributing to the workplace death.

The penalties are harsh – 25 years in prison for an individual convicted of industrial manslaughter, and fines of up to $11 million for bodies corporate.

Practical suggestions for NSW employers

Our clients are business owners who want to do the right thing by their employees. Here are some recommendations of where to start getting your compliance house in order before any serious workplace accidents occur.

  • Talk to your lawyer to understand the relevant legislation and penalty regime.
  • Review your suite of policies and procedures for compliance with all current and relevant legislation. Again, having a trusted legal adviser to review your existing documentation and make recommendations is a wise investment.
  • How well do your employees understand the policies you have in place? Do you need to consider additional training or refresher sessions? A more frequent reminder of compliance requirements whether during team meetings, individual performance reviews, via the company intranet or email, or some combination?
  • More communication. Are there additional ways you can remind employees of relevant precautions or safety procedures? Signage, checklists, brief videos or automated SMS reminders are a few options to consider.
  • Even more communication. Are you ensuring maximum compliance from non-English speaking employees? If not, consider ways to address it.
  • According to SafeWork Australia, there are five principles for leading a workplace that promotes safety, beginning with the leader’s commitment to a safe workplace. Promoting a safe workplace begins at the top. If employees know and trust the CEO to support supervisors on OH&S issues, then safety-first becomes second nature at work. Safety conscious leaders get involved in the business directly, support supervisors, talk to employees, encouraging participation in decisions to improve and maintain safety standards. Assessing your own performance is always worthwhile – while a bit of 360-degree feedback never goes astray.
  • Record-keeping. If you’re not already capturing OH&S events in a consistent manner, we recommend getting some advice on what information to capture, how and when to capture it, and how and where to store it – ensuring you comply with all relevant privacy and related legislative frameworks.

NSW employers: time to get your OH&S house in order

Irrespective of the outcome of the proposed bill, we believe that NSW employers should strengthen their OH&S policies and procedures now against the increasing likelihood of industrial manslaughter legislation in the future. Given the high stakes of risky or non-compliant procedures for employees and employers alike, there has never been a better time to review your organisation’s policies, processes, record-keeping and culture surrounding workplace health and safety.

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