In 2017 Queensland government passed the Work Health and Safety and Other Legislation Amendment Bill 2017 (Qld), which introduced new “industrial manslaughter” provisions. The new industrial manslaughter offence is included in the Work Health and Safety Act 2011 (Qld) (WHS Act), as well as the Electrical Safety Act 2002 (Qld) and Safety in Recreational Water Activities Act 2011 (Qld).
Under this offence, the person conducting a business or undertaking (PCBU) or senior officers can be criminally prosecuted for the deaths of workers occurring in the workplace, either by act or omission. Under section 34C of the Work Health and Safety Act 2011 (Qld), a PCBU and or a senior officer is guilty of Industrial Manslaughter if:
- A worker:
- Dies in the course of carrying out work for the business or undertaking; or
- Is injured in the course of carrying out work for the business or undertaking and later dies; and
- The person’s conduct causes the death of the worker; and
- The person is negligent about causing the death of the worker by the conduct.
PCBU is defined under the section 5 of the WHS Act. Therefore, a PCBU can be a sole trader, a partnership, company, unincorporated association or a government department.
The use of the term ‘senior officer’ for the industrial manslaughter offence is intended to capture individuals of the highest levels in an organisation. However, a person is not a senior officer if they simply provide advice for the consideration of decision-makers or are only involved in the administration of a business process.
Workers are generally considered to be the employees, contractors, or volunteers of a workplace.
Where an individual is found guilty of manslaughter, they will face a sentence of a maximum 20 years imprisonment. PCBU found guilty may receive fines of up to 10 million dollars.
Industrial manslaughter is subject to the same guidelines and standards as criminal manslaughter and criminal negligence under the Criminal Code (Qld) 1899. The same defences for criminal manslaughter are also available, excluding the defence of ‘accident’. Currently, there has been one charge of industrial manslaughter in Queensland, for two company directors found to have engaged in reckless conduct resulting in the death of a worker.
Unincorporated associations will not be liable for industrial manslaughter. However, their senior officers may still face charges if they are found to be responsible. If a senior officer is a volunteer, they will not be held liable for any death in the workplace.