Industrial Manslaughter

Industrial manslaughter has become a focus of Australian workplace safety legislation, with most jurisdictions enacting legislation to impose significant penalties for negligent or reckless conduct that causes the death of a worker. This article explores the scope, penalties, and enforcement of industrial manslaughter in Australia.

What Is Industrial Manslaughter?

Industrial manslaughter refers to an offence where an employer, a person conducting a business or undertaking (PCBU), or an officer breaches their duty of care and negligently or recklessly causes the death of a worker. This offence carries severe penalties, including substantial fines for corporations and imprisonment for individuals. Industrial manslaughter is also sometimes known as corporate manslaughter or workplace manslaughter.

While industrial manslaughter laws differ across States and Territories, most jurisdictions share a common requirement that the PCBU or officer must breach their duty of care under relevant work health and safety laws, and this breach must result in a worker’s death. However, the fault element varies, with each jurisdiction applying different tests for negligence or recklessness.

Generally, the elements of industrial manslaughter require:

• A breach of duty under workplace health and safety laws;
• Conduct that causes the death of a worker; and
• A level of recklessness, negligence, or gross negligence.

Unlike the balance of the work health and safety legislation in the various jurisdictions, which is risk-based, the offence of industrial manslaughter captures serious breaches of work health and safety duties, which cause the death of a person at work.

The implications of the law are that breaches of work health and safety laws in Australia that result in a death carry substantially significant penalties.

Industrial Manslaughter Victoria

In Victoria, industrial manslaughter is known as “workplace manslaughter”, which was introduced in the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) under section 39G, commencing on 1 July 2020. Workplace manslaughter is an indictable offence (s39G(4)).

Under this section, a person or an officer of an entity who is not a volunteer must not engage in conduct that:

• is negligent; and
• constitutes a breach of an applicable duty that the person or entity owes to another person; and
• causes the death of that other person.

An entity is an applicable entity for the purposes of this section (whether or not it represents the Crown) if it is:

• a body corporate; or
• an unincorporated body or association; or
• a partnership.

Unlike other indictable offences under the OHS Act, this offence cannot be heard and determined summarily, as section 28 of the Criminal Procedure Act 2009 does not apply (Note s39G).

Penalties for Workplace Manslaughter

In Victoria, the maximum penalty for workplace manslaughter is 25 years imprisonment for an individual and a fine of 100,000 penalty units ($19,231,000 as of 2024) for a corporation (the OHS Act s39G).

Those who can be charged and prosecuted with workplace manslaughter include organisations and those who are self-employed and who hold specified duties under the OHS Act. Such organisations include:

• trustees of a trust
• bodies corporate (for example, registered companies)
• incorporated associations
• statutory authorities
• unincorporated bodies and unincorporated associations
• partnerships
• government entities

If an organisation has specified duties under the OHS Act, officers of the entity may also be charged with workplace manslaughter.

Officers are the most senior within an organisation and have the resources to improve safety. Officers include:

• A person:
  • who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business; or
  • who has the capacity to significantly affect the entity’s financial standing;
• Directors or secretaries of a corporation; or
  • in accordance with whose instructions or wishes the directors of a corporation are accustomed to act.
• A partner in a partnership; and
• An office holder of an unincorporated association

In Victoria, workplace manslaughter does not apply to a volunteer or an employee unless the employee is also an officer of the organisation.

However, an employee can be prosecuted for breaching employee duties under the OHS Act, such as the duty to take reasonable care for their own health and safety and the health and safety of others in the workplace (s25).

Duties under the Occupational Health and Safety Act 2004

The offence of workplace manslaughter applies if there is a breach of a specified duty under the Occupational Health and Safety Act 2004 (the OHS Act). The law does not create any new duties under the OHS Act. Therefore, employers and officers who comply with existing OHS duties and responsibilities cannot be charged with workplace manslaughter. The law merely increases the penalties for a serious breach of those duties.

The main duties under the OHS Act include:

• The duty of employers to provide and maintain a working environment for employees that is safe and without risks to health (s21(1)).
• The duty of employers to monitor the health of employees and working conditions (s22).
• The duty of employers to ensure persons other than employees are not endangered by the conduct of the business (s23).
• The duty of self-employed persons to ensure persons are not exposed to OHS risks from the undertaking of the self-employed person (s24).
• The duty of persons with the management or control of a workplace to ensure that the workplace and the means of entering and leaving it are safe (s26).
• The duty of designers to ensure plant, and buildings and structures that are used as workplaces, are safely designed (ss27, 28).
• The duty of manufacturers and suppliers to ensure plant or substances are safely manufactured and safe to use (ss29, 30).
• The duty of a person not to recklessly engage in conduct that may place another person at a workplace in danger of serious injury (s32).

When is conduct negligent?

Under section 39E(1) of the OHS Act, conduct is negligent if it involves:

• (a) a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in; and
• (b) a high risk of—
  • (i) death; or
  • (ii) serious injury; or
  • (iii) serious illness.

In determining whether conduct engaged in by a body corporate is negligent under section 39E(2):

• (a) what matters is the conduct engaged in by the body corporate itself; and
• (b) it does not matter whether the conduct is, or is not, conduct imputed to the body corporate under s143; and
• (c) it does not matter whether any of the body corporate’s officers were involved in all or any part of the conduct; and
• (d) the standard to be applied under s39E(1)(a) is the standard of care that would have been taken by a reasonable body corporate in the circumstances in which the conduct was engaged in.