NSW introduces new industrial manslaughter laws

NSW is one of the last states to introduce a criminal industrial manslaughter offence under its work health and safety laws, attracting the highest penalties across the Commonwealth. We take a look at what directors need to know.

On 20 June 2024, the NSW Government introduced a new industrial manslaughter offence under the Work Health and Safety Act (NSW) (NSW WHS Act).

NSW is one of the last states in Australia to have legislated an industrial manslaughter offence into its work health and safety laws, with Tasmania now the last remaining jurisdiction - although this state is expected to follow suit with new legislation recently passing the lower house.

While the new industrial manslaughter offence does not create new work health and safety obligations or duties for employers, significant penalties will apply for conduct that causes the death of a worker – with fines of up to $20 million for companies and up to 25 years' imprisonment for individuals.

In contrast to the existing category 1 offences under the NSW WHS Act which are concerned with actions that expose persons to risk, the new industrial manslaughter offence may be committed where a person:

• Has a health and safety duty;
• Is a ‘Person Conducting a Business or Undertaking’ (PCBUs) – either a body corporate or officer of an organisation (although this does not apply to volunteers);
• Engages in certain conduct, by an act or omission, that causes the death of a worker or another individual, to whom the person’s health and safety duty is owed; and
• Engages in conduct with gross negligence.

Importantly, ‘gross negligence’ on the part of a body corporate can be established where there is evidence of:

• Inadequate corporate management, control or supervision of conduct; or
• A failure to provide adequate systems for conveying relevant information to relevant persons within the organisation.

The new industrial manslaughter offence only applies to conduct on or after the commencement of the amending legislation. Importantly though, there is no limitation period for prosecuting industrial manslaughter offences, meaning that legal proceedings can be initiated at any time following the offence.

Implications for directors

Directors have a positive legal duty to implement and monitor systems that ensure safe working conditions in their workplaces as far as reasonably practical. Directors, as PCBUs, can be personally liable for breaches of WHS laws, including the new industrial manslaughter offence.

The introduction of the new industrial manslaughter offence in NSW serves as an important reminder for directors of their WHS obligations. Now is a good time to review the adequacy of existing arrangements.

Some key questions for directors to consider include:

• When was the last time our organisation’s WHS frameworks were independently assessed?
• How often do WHS matters feature on the board agenda and does that need to increase?
• What evidence can management provide to illustrate a strong WHS culture?
• Do appropriate channels exist for receiving and considering information on incidents, hazards and risks, including confidential channels for employees to raise WHS concerns?
• Are WHS targets and requirements included in management’s KPIs and/or remuneration incentives?

Below is a comparison of industrial manslaughter penalties across the Australian states and territories (as at June 2024).