It had to happen - industrial manslaughter law to be introduced in NSW

What you need to know:

• The NSW Labor Government has been attempting to introduce industrial manslaughter legislation since 2021. The Minns Government now has the opportunity and intends to introduce a bill to parliament in the first half of 2024.
• SafeWork NSW will begin an extensive consultation process which will include work health and safety experts, business groups, unions, legal stakeholders and families of people who have been killed at work.
• Almost all Australian jurisdictions now have industrial manslaughter legislation in force, with only the Commonwealth, NSW and Tasmania yet to pass such laws.

What you need to do:

• Remain vigilant in identifying hazards and assessing and controlling risks in your workplace.
• Encourage a proactive safety culture with your organisation.

What is the current NSW legal landscape?

Although there are currently no industrial manslaughter laws in NSW, the Work Health and Safety Act 2011 already contains provisions similar to the offence of industrial manslaughter in other jurisdictions.

In particular, a Category 1 offence in NSW criminalises 'Gross negligence or reckless conduct that exposes an individual to a risk of death or serious injury or illness' by health and safety duty holders.

Although category 1 offences have been available in NSW since 2012, the WHS regulator, SafeWork NSW, has undertaken very few prosecutions of this nature until recently.

The matters outlined below demonstrate a willingness of SafeWork NSW to take more significant enforcement actions and indicate that there may be an appetite to use the new industrial manslaughter provisions, once they are enacted.

Recent Category 1 prosecutions in NSW

• SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor [2023] NSWDC 256. In this case, a 40 year old worker was fatally injured when he was drawn into a woodchipper whilst handfeeding branches into it. The court found A1 Arbor did not complete a risk assessment of the equipment, which had several defects and there was little supervision of workers. Further, workers did not receive training to operate the equipment. Arbor Tree Service Pty Ltd was charged with a breach of the category 1 offence of the Work Health and Safety Act 2011 (NSW). On 14 July 2023, the defendant was convicted by the District Court and fined AU$2,025,000. The multi-million dollar penalty is the single largest court imposed fine for a business in NSW.
• SafeWork NSW v Synergy Scaffolding Services Pty Ltd [2022] NSWDC 584. In this case, a worker was fatally injured, and another worker sustained serious injury when a large section of scaffold collapsed on top of them at a construction project in Macquarie Park. Synergy Scaffolding Services Pty Ltd was charged with a breach of the category 1 offence of the Work Health and Safety Act 2011 (NSW). On 25 November 2022, the defendant was convicted by the District Court and fined AU$2,000,000.

Industrial manslaughter in other Australian jurisdictions

What does this mean for employers?

While any new industrial manslaughter laws in NSW will not change the nature of any safety duties currently owed by employers, the significant penalties that could apply following a workplace death should heighten the importance of taking a proactive approach to meeting such duties.

Authors: Scarlet Reid, Partner; Georgia Chahoud, Associate; Erina Higgins, Graduate.