Industrial Manslaughter: Australia Set to Increase Workplace Safety With the Closing Loopholes Act

Key takeaways

• Australia recently passed the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, which includes new industrial manslaughter offences to hold organisations accountable for preventable workplace fatalities. Laws will take effect from 1 July 2024.
• The new laws coincide with the first industrial manslaughter charge in Victoria, resulting in a $1.3 million company fine as a result of negligent practices leading to the death of a subcontractor at a Somerton factory.
• Strategies to eliminate preventable workplace deaths include a refreshment of OHS protocols and industry best practices, thorough risk prevention, and compliance with safety legislation.
• The use of anonymous reporting tools can encourage the reporting of workplace safety concerns, leading to the early detection of unsafe practices.

Fair Work Legislation Amendment (Closing Loopholes) Act 2023

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023, which received Royal Assent on 14 December 2023, introduces several key reforms aimed at enhancing protections for employees and addressing gaps in the existing labour legislation. These reforms cover a range of areas, including the rights of workplace delegates, strengthening protections against discrimination, particularly in relation to family and domestic violence (FDV), and the criminalisation of wage theft.

Key provisions of the Closing Loopholes Act

A notable update is the introduction of a new offence of industrial manslaughter under the Work Health and Safety Act 2011. The legislation defines workplace manslaughter as negligent conduct by an individual leading to death, with negligence being a great falling short of care with a high risk of death or serious illness.

Starting from 1 July 2024, new industrial manslaughter provisions, including the definition and enforcement of the offence of industrial manslaughter, will be in effect. In cases where a person conducting a business or undertaking (PCBU) commits industrial manslaughter, these provisions will be crucial in holding them accountable.

Implementing the changes

Under these provisions, businesses should:

• Systematically assess and mitigate risks to prevent serious injuries or fatalities
• Emphasise proactive safety management
• Conduct a robust consultation process to ensure comprehensive risk assessments
• To truly safeguard their employees, companies need to adopt a proactive approach to safety, which goes beyond mere compliance with safety laws.

Recent industrial manslaughter incidents

The first prosecution under Victoria’s industrial manslaughter laws offers a telling example, where the Victorian court imposed a $1.3 million company fine.

• A 25-year-old subcontractor, Michael Tsahrelias, died after a forklift operated by Laith Hanna tipped over and landed on him while attempting to reverse down a slope with a large steel rack.
• The company, LH Holding Management Pty Ltd, under the directorship of Laith Hanna, pleaded guilty to a single charge of engaging in negligent conduct that resulted in a worker’s death, with Laith Hanna being the person conducting the operation.
• The company was fined $1.3 million.
• Laith Hanna was placed on a two-year Community Corrections Order, which included 200 hours of unpaid community work and a forklift operation course.
• Hanna was also ordered to pay $120,000 in compensation to the worker’s family.

The impact on workplace safety standards

This tragic incident of workplace death underscored the cruciality of safety obligations and the severity of consequences that come with failing to meet them, including instances of gross negligence. WorkSafe Executive Director of Health and Safety, Narelle Beer, emphasised that workplace harm is entirely preventable, highlighting that no incident should be deemed unavoidable. The sentence handed down in this case hoped to set a precedent that would deter other businesses from negligence and emphasise the paramount importance of safety.

Following this incident, the emphasis has been placed on employers to adhere to specified safety measures, such as implementing a traffic management plan and ensuring proper operator training, to avert similar tragedies.

Industrial manslaughter laws in Australia: state by state

Across Australia, each jurisdiction has its own specific laws and penalties related to industrial manslaughter. There is a concerted effort to strengthen legislation surrounding industrial manslaughter, reflecting the seriousness of workplace fatalities.

While Queensland enforces specific industrial manslaughter laws with significant penalties, the Northern Territory imposes even harsher consequences for workplace deaths, including life imprisonment for individuals and substantial fines for companies. This variety of laws and penalties underscores the complexity and diversity of industrial manslaughter legislation across the country.

Jurisdictional variances in penalties and enforcement

While the laws vary by jurisdiction, the penalties for industrial manslaughter are severe nationwide. In Victoria, the maximum penalties for industrial manslaughter involve 25 years imprisonment for individuals and a fine of up to $16.5 million for corporations. The Model Work Health and Safety (WHS) Act, applicable across multiple jurisdictions, set the maximum penalty for industrial manslaughter at $18 million for a body corporate and up to 20 years in jail for individuals.

WorkSafe ACT actively enforces industrial manslaughter laws to ensure compliance with health and safety obligations in the Australian Capital Territory. In South Australia, unlike other offences under the Work Health and Safety Act, industrial manslaughter offences are not subject to a 2-year statute of limitations for legal proceedings.

Recent developments and legislative trends

The landscape of workplace law is continually evolving, with industrial manslaughter laws being progressively introduced in multiple Australian jurisdictions, including:

• Queensland
• Victoria
• Western Australia
• ACT
• South Australia (most recent addition)

The Work Health and Safety Act 2020 in Western Australia categorises industrial manslaughter as the most serious Category 1 offence, indicating a nationwide trend towards harsher penalties for severe workplace safety breaches.

This trend towards tougher penalties for health and safety breaches in Australian jurisdictions is exemplified by the upcoming implementation of industrial manslaughter laws in South Australia, planned for mid-2024.

Strategies to avoid safety breaches and industrial manslaughter

While it’s vital to understand the legal landscape, active efforts towards preventing industrial accidents are equally imperative. It is incumbent upon companies to ensure their safety policies accurately mirror their practices and that these policies are clearly conveyed to all team members. Conducting regular risk assessments is fundamental to any health and safety system, and managing both physical and psychological hazards within a risk management framework is essential in fulfilling their health and safety duty.

Risk management and compliance best practices

• Non-punitive, anonymous reporting tools support safety improvements by enabling a proactive approach to prevent accidents and providing valuable data for safety analysis. By providing a confidential channel for whistleblowing, anonymous reporting tools play a critical role in identifying and proactively addressing safety risks.
• Training that engages employees and requires decision-making can improve safety behaviour, emphasising the understanding of safety obligations over mere compliance.
• Accurate documentation of employee training records and evidence of competence in managing physical and psychological risks are necessary to enhance workplace safety.

Cultivating a culture of safety

A safe workplace culture requires the collective effort of both leaders and employees to work within a safe culture framework. This includes:

• Ensuring that safety systems genuinely reflect the operations of the business
• Orienting safety systems towards preventing workplace fatalities
• Ongoing evidence of employee competence in safety practices
• Encouraging a speak-up culture to identify hazards and incidents
• Contributing to a stronger culture of safety

Senior staff hold a significant safety duty in promoting safety, demonstrated by their visible prioritisation of safety meetings and implementation of worker safety suggestions, highlighting their importance within the company’s safety framework.