It happened: Industrial Manslaughter laws introduced in the NSW Parliament

What you need to know:

• Yesterday, 4 June 2024 the Work Health and Safety Amendment (Industrial Manslaughter) Bill was introduced in the NSW Parliament.
• If passed, the Bill introduces a new offence of industrial manslaughter into the Work Health and Safety Act 2011 (NSW) (WHS Act).
• The Bill does not create any new work health and safety duties.
• What the Bill does do is create new and severe penalties if existing safety duties are breached in circumstances involving gross negligence that causes a person's death.

Provisions explained

Introduction of this Bill fulfils a key Minns Government election commitment and brings NSW into line with the other mainland jurisdictions which have all made industrial manslaughter a crime.

The industrial manslaughter offence is proposed to be introduced in Part 2A of the WHS Act. In terms of section 34C of that Part, either a person conducting a business (PCBU) or Officer (but not a volunteer) will commit industrial manslaughter if the elements of the offence are made out.  

The elements are:

• the PCBU or Officer has a WHS duty;
• the PCBU or Officer engages in conduct which constitutes a failure to comply with that duty;
• the conduct causes the death of the worker or another individual to whom the person owes a duty; and
• the conduct is grossly negligent.

The penalties for committing an industrial manslaughter offence are significant. In the case of an individual, 25 years’ imprisonment; and in the case of a body corporate, $20 million.

There is no limitation period for proceedings for industrial manslaughter offences to be brought unlike other offences under the WHS Act.

What does this mean for employers?

• The Bill sends a clear message that workplace fatalities are as serious as other fatalities. The penalties are aimed at reflecting the culpability of the offender and the gravity of the offence.
• Given the recent willingness of SafeWork NSW to take more significant enforcement action (discussed in our October 2023 alert), once passed, the Bill's early use should be anticipated as well as an increase in related enforcement activity.
• While the proposed new law does not change the nature of duties currently owed by PCBUs and Officers, it is increasingly important to

- Remain vigilant in identifying hazards and assessing and controlling risks in your workplace.

- Encourage a proactive safety culture with your organisation.

Want to know more?

• It had to happen - industrial manslaughter law to be introduced in NSW (20 October 2023) 

Authors: Scarlet Reid, Partner and Jacqui Brinckmann, Senior Associate.