Opinion
Review of industrial laws across Australia – are workers who die on worksites better protected?
6th Jun 2024
Nearly all states and territories in Australia now have laws in place to prosecute companies and their directors for industrial manslaughter when a worker dies on their work site, but actual cases have been few and far between.
Victoria has become one of the few states in Australia to convict a company and its sole director for causing the death of one of its workers.
In February 2024, the Victorian Supreme Court convicted stonemasonry company LH Holding Management Pty Ltd for engaging in negligent conduct constituting a breach of duty that caused death. The company was also fined $1.3 million, and its sole director received a community corrections order for two years, requiring him to complete 200 hours of unpaid community work and a forklift operation course.
The company and Mr Hanna pled guilty to the criminal charges, which related to the death of a 25-year-old subcontractor who was crushed by a forklift that tipped over while being operated by Mr Hanna.
Given several workplace deaths that have hit the headlines recently, there is heightened focus on the state of industrial manslaughter laws across Australia, where a corporation or individual can be charged for negligence or a breach of duty because of a death at their workplace.
Regulators and prosecutors across the country say that they are committed to pursuing companies and individuals responsible for work health and safety after a workplace fatality (often where company profits have been prioritised well above worker safety), but prosecutions have been scarce.
The LH Holding forklift conviction was the first successful prosecution in Victoria since the garden state introduced workplace manslaughter laws in July 2020.
WorkSafe Victoria and Victoria Police have faced significant criticism from the public for not bringing enough cases to the public prosecutor, particularly following a mine collapse in Ballarat in March 2024 that caused the death of a 37-year-old father and left a 21-year-old in critical condition.
Victoria is not alone in its apparent inaction, despite having a legislative framework in place aimed at securing convictions.
Nearly all states and territories across Australia have industrial manslaughter laws to charge companies and company directors for recklessly or negligently failing to ensure the safety of individuals at their workplace, leading to needless worker fatalities.
New South Wales and Tasmania are the outliers, but the New South Wales Government has begun consulting on their own laws and intend to introduce a Bill to Parliament this year.
On a federal level, the Department of Employment and Workplace Relations has amended the Work Health and Safety Act 2011 (Cth) to introduce the offence of industrial manslaughter and higher penalties for breaches of work health and safety duties, which will apply to public sector workers from July 2024. Individuals will face 25 years in prison and body corporates could get hit with a fine of up to $18 million under the changes.
Yet, the statistics paint a disappointing picture.
Queensland only prosecuted and convicted its first individual for industrial manslaughter in 2022, despite the laws being in place since 2017. Northern Territory has brought charges in two separate incidents since commencing its own laws in 2020. Those cases remain ongoing. South Australia only passed its laws in late 2023, Western Australia in 2022, so neither have any cases or convictions yet. The ACT has not prosecuted a single case even though industrial manslaughter has been an offence there since 2004.
Why are convictions so rare?
For a person to be guilty of industrial manslaughter, their negligence must have caused the death of an individual. One must prove that the person intentionally engaged in conduct that breached their duty under the Work Health and Safety Act 2011 (Cth), and that the conduct was reckless or negligent, and caused the death of an individual.
Prosecuting corporate entities under industrial manslaughter is rare because the prosecutor often must identify an individual officer, director and/or employee as the ‘directing mind and will’ of the corporation who is at fault. Aggregating the negligence of more than one individual would often not succeed. This means that large corporations, particularly those with elaborate corporate structures, are often readily able to evade prosecution for manslaughter altogether.
The main argument for industrial manslaughter laws is that existing criminal offences are inadequate for deterring and punishing grossly negligent safety breaches that result in a workplace death.
The reality is that any industrial manslaughter laws in Australia will not meaningfully change the nature of safety duties currently owed by employers. The significant penalties that could apply following a workplace death may, however, heighten the importance of taking a proactive approach to meeting such duties.
Alternatives to criminal charges
In an ideal world, the justice system would be efficient and have the resources to hold those responsible for preventable deaths to account, whether through financial penalties or jail time.
Unfortunately, it doesn’t always happen that way.
Losing a loved one can not only cause significant trauma or nervous shock, but the financial strain can also be very intense for the loved ones left behind. When there is a dependent spouse and children involved, money can become incredibly tight to pay for daily living expenses and mortgage payments, in addition to estate matters, all while grieving the loss of a loved one.
At a time when injuries and deaths at work are occurring far too often, families should know that they have other options besides criminal charges to help support them during these difficult times. These include:
- Nervous shock claims;
- Dependency claim;
- Funeral expense claim;
- Work-related death benefit claim; or
- Superannuation life insurance and death benefit claim.
If workers are appropriately trained and competent to operate the equipment they are required to use on their site, and work under a ‘safe system’ of work, the vast majority of workplace deaths should not occur.
The companies that have lax compliance systems in place should not be able to get away with avoiding accountability for their failures, especially when it results in death.
It is certainly a step in the right direction that families can now seek justice in nearly every state and territory of Australia and have these companies and their directors pursued for industrial manslaughter. We just need to see more prosecutions.
The ALA thanks Yasmine Chalvatzis for this contribution.
Yasmine Chalvatzis is a Compensation Lawyer at Attwood Marshall Lawyers, based on the Gold Coast. She specialises in workers’ compensation claims, public liability claims and motor vehicle accident claims and is committed to achieving the best possible result for those whose lives have been upended by tragedy.
This is an edited version of an article first published by Attwood Marshall Lawyers.
The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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