On 4 June 2024, the New South Wales Government introduced a Bill to amend the Work Health and Safety Act 2011 (NSW) (WHS Act) to create the offence of industrial manslaughter, where an individual will face 25 years imprisonment and a body corporate a penalty of $20,000,000.
The proposed offence is committed where a person:
- has a health and safety duty;
- is a person, or an Officer of a person, conducting a business or undertaking (PCBU);
- engages in certain conduct, by an act or omission, that caused 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.
Gross negligence, on the part of a body corporate, may be evidenced by the fact the conduct was substantially attributable to:
- inadequate corporate management, control or supervision of the conduct of one or more authorised persons; or
- failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
The Bill proposes that there will be no limitation period on commencing a prosecution and that an offence against an individual will be pursued on an indictment by the Office of the Director of Public Prosecutions before a judge and jury.
Any alleged offences against a body corporate must be prosecuted as a summary prosecution before the Industrial Court of NSW, unless the prosecutor elects to proceed on indictment.
In any industrial manslaughter prosecution, an alternative verdict of a section 31 offence of the WHS Act may be found by the Court or jury.
The Bill does note that the proposed amendment of this offence of Industrial Manslaughter, applies only to conduct on or after the commencement of the amendment.
Comment
As we noted in our recent National WHS Newsletter, we discussed leading safety indicators and WHS culture, where amendments to the WHS Act in 2023 allows a Court to consider the corporate safety culture of the PCBU.
We do recommend that the systems for conveying information within the body corporate be reviewed to ensure the Directors and Officers are receiving the appropriate safety information to be informed of the safety culture within the organization.
This article was written by Greg McCann, Partner.
