Industrial manslaughter provisions are set to be legislated in Western Australia, with a maximum penalty of 20 years of imprisonment for an individual.
After nearly four weeks of debate, the WA Government’s Work Health and Safety (WHS) Bill passed the Legislative Council last week.
It now goes back to a final vote by the lower house which is expected to take place on 3 November 2020. The new laws will commence when the associated regulations are finalised, expected early next year.
Workplace safety will come under a single Act that covers all WA workplaces as part of the legislation.
In a statement, the WA Labor State Government said the new laws would offer greater protection to Western Australian workers, capturing modern employment relationships, such as subcontractors or casual workers, not just the classic employer/employee relationship. In particular, they will introduce the term ‘person conducting a business or undertaking’.
The legislation follows the recommendations of two national reviews, and includes criminalising industrial manslaughter – this includes a maximum penalty of between five and 20 years of imprisonment for an individual and a maximum $10 million fine for a body corporate.
Other new aspects include increased penalties, prohibiting insurance coverage for WHS penalties and the introduction of enforceable undertakings as an alternative penalty.
The new laws will harmonise WA with other States and Territories, except Victoria, although amendments have been made to tailor the laws for WA.
This means companies that operate across Australia will have similar obligations and requirements in each State and Territory.
This Bill follows the increases in workplace penalties the WA Government introduced in October 2018:
- Level 4 (the highest) offences attract a maximum $2.7 million penalty for first offenders and $3.5 million for subsequent offenders (up from $500,000 and $625,000 respectively); and
- Level 1 (least severe) penalties increased from $50,000 to $450,000 for first offenders and from $62,500 to $570,000 for subsequent offences.
Other states
The Northern Territory Legislative Assembly passed the Territory’s first industrial manslaughter laws late last year. The maximum penalty for an individual is imprisonment for life. A business found guilty of this new offence could face a maximum penalty of 65,000 penalty units or $10,075,000 under the 2019-20 penalty unit rate. The new offence will not be applied retrospectively. The Work Health and Safety Legislation Amendment (Industrial Manslaughter) Bill 2019 was a key recommendation from the review of workplace health and safety in the NT conducted by former ACTU senior official Tim Lyons.
The Victorian Labor Government has also made industrial manslaughter a criminal offence, under new laws passed by the Parliament. Under the new laws, employers who negligently cause a workplace death will face fines of up to $16.5 million and individuals will face up to 20 years in jail. The offence will fall under the Occupational Health and Safety Act 2004 (OHS Act) and will apply to employers, self-employed people and ‘officers’ of the company or organisation.
Australia’s toughest mine safety laws passed Queensland Parliament in May this year. The Mineral and Energy Resources and Other Legislation Amendment Bill 2020 introduces an industrial manslaughter offence into resources safety legislation, as well as other amendments to resources safety legislation. It means executives face up to 20 years’ jail if Queensland mine and quarry workers are fatally injured due to criminal negligence.
AMMA submits member views on review of model WHS laws
In August 2019 AMMA made a submission to Safe Work Australia’s (SWA) Consultation Regulation Impact Statement (CRIS) on the impacts of implementing the Recommendations of the 2018 Review of the Model WHS laws (2018 Review) as part of the consultation process on behalf of employers in the resources and energy industry.
AMMA provided feedback on recommendations of significant concern to members in the resources and energy industry.
AMMA’s position, consistent with other business representative groups, is that there are existing, appropriate avenues within Australian criminal law for individuals to be prosecuted for gross negligence that has led to a workplace death. A framework that focuses on punitive measures to health and safety compliance diminishes an organisations’ safety culture. AMMA maintains that continuous improvement in safety outcomes in the workplace, is best driven by cooperative, proactive initiatives to enhance safety culture, not an adversarial legal approach seeking to attribute blame and liability after an accident occurs.
Click here to read more about the focus of AMMA’s submission or here to view AMMA’s entire submission.
For further information about industrial manslaughter or any other WHS policy matter, contact [email protected]
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