Industrial Manslaughter – Are you at Risk?

SafeWork NSW is a body that has been in place since the 1st of September 2015, replacing the long standing Workcover NSW. Since then, it has been working hard to bring safety into the workplace by persuading employers to comply with the Work Health and Safety ACT that was launched on January the 1st 2012.

The WHS ACT is a comprehensive framework that is designed to create a consistent approach to workplace safety recognisable on a national level, not just State specific, even though the ACT only has NSW jurisdiction. It does this by protecting workers and other persons from harm by requiring duty holders to eliminate or minimise risk.

When a worker is being asked to undertake any task, it should be that it is done assuming that they have sought to minimise or eliminating risk where reasonable. When you consider all the tasks workers carry out, if risk is not reduced and workers are forced to cut corners then the likelihood of death increases.

The WHS ACT is in place to guide employers to make the best possible decisions with regards to worker safety, not to make procedure that will cause an increase in risk and if there is a risk they must do what they can to lower the chance of harm.

The Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 (Amendment Act) passed the NSW Parliament on 20 June 2024 and was assented to on 24 June 2024. NSW was the last State in Australia to introduce this type of Act.

The Amendment Act introduces an industrial manslaughter offence in NSW, with the maximum penalties of $20 million for a body corporate and 25 years imprisonment for an individual.

Persons conducting a business or undertaking (PCBUs) and officers of PCBUs will commit industrial manslaughter when they engage in grossly negligent conduct that breaches their work health and safety duties that they owe an individual and cause the death of that individual. These new laws do not impose additional work health and safety duties. This extends to contractors and employees, so even someone attending your workplace could be your responsibility if you are paying them.

The WHS Act involves driving as part of the workplace and often employers make the mistake of thinking that an individual who has a driver’s license and therefore are competent are automatically safe. Sadly, this couldn’t be further from the truth, as statistically driving remains as the number one cause of fatalities in the workplace. Therefore, if the employer has not taken appropriate steps and assessed the safe driving landscape for ALL of their workers, they are at significant risk of the new Industrial Manslaughter amendment.

There are many ways that a company director, manager or supervisor could be found guilty under the WHS ACT if a worker dies while at work, driving only widens the risk for management knowing the statistic.

When we are asked to provide workplace driver education and training, we always look to ask the question, is this to cover yourself against the legislation, or is it to genuinely reduce risk?

Because we can provide both services, but our preference would be to always reduce the risk, as every worker deserves to have a safe working environment. If we look at the bigger picture, this will include, training, policy, operations, vehicle selection and procedure. STC Education has provided driving solutions to solve these issues for many years and have worked with government organisations to smaller companies that undertake high risk vocations.

To put this simply, you must ensure your working environment is safe and take all steps possible to reduce risk and or eliminate that risk. With driving, your staff don’t have to be on the road all day to warrant your attention to this risk. It literally means anyone that drivers for any reason must be considered. So even if they just drive to one meeting, that constitutes a risk. Now we accept that the risk is lower for someone that drives infrequently for work, but nevertheless the risk is still there.

Is there precedence for this Act? Yes, in Victoria, February 2024, a company was fined $1.3 million, and its sole director was placed on a Community Corrections Order for the death of a worker crushed by a forklift. The worker was standing near the forklift when it tipped over. The company and director were also ordered to pay $120,000 in compensation to the worker's family

So, what can you do? The first thing is to ensure you are looking at this area of your business and look to make changes. Put in place a good quality driving policy, we can help with this, but it should take into account as much detail as possible. Next, ensure you have a clear position regarding the type of vehicles used for company purposes, this should be a priority to ensure suitability.

What training are you providing your drivers and when was it conducted last?

There are many training options, each with various specific WHS purposes, and there are levels for higher risk drivers. Consider if your drivers ever go off-road, or need to drive long distances, or tow a trailer as an example.

If you are taking steps to ensure your drivers are safe, then you will reduce your risk of breaching the WHS Act and Workplace Industrial Manslaughter Amendment. We can discuss these options with you further and are happy to help you become more compliant with WHS and driving.

We hope this article helps you understand your risk, but at a minimum, if you haven’t got at least the basics of what is mentioned here, it is safe to say you are at risk!

Stewart Nicholls

Managing Director

STC Education.