Work Health & Safety Federal Update - What you need to know Work Health & Safety Federal Update - What you need to know

Work Health & Safety Federal Update - What you need to know

5 November 2020 | Employment and Safety

In Australia, each state and territory has their own Work Health and Safety (WHS), or Occupational Health and Safety (OHS), legislation and each state and territory’s regulators are responsible for ensuring compliance. In 2011, SafeWork Australia developed ‘model WHS laws’ to be implemented across Australia. The model WHS laws have been implemented in all jurisdictions except VIC and WA. Despite reforms for harmonisation of WHS laws, there are slight differences and this may be confusing for organisations or employers operating across more than one state. Below we highlight areas that have recently been updated or introduced including industrial manslaughter, increased penalties or what the current penalties are, and whether insurability on WHS fines are unlawful.

What you need to know

In summary:

  • In NSW and soon in WA, it is considered unlawful to have insurance or indemnity against a WHS fine or penalty;
  • In NSW, VIC, QLD, ACT and potentially WA soon, industrial manslaughter is an offence.
Australian Capital Territory – Work Health and Safety Act 2011 (ACT)

Industrial manslaughter

Industrial manslaughter in the ACT is an offence under the Crimes (Industrial Manslaughter) Amendment Act 2003, as opposed to WHS legislation.

Penalties

The maximum penalty for industrial manslaughter for and individual is $320,000 (2000 penalty units) and/or imprisonment for 20 years, and for a body corporate $1.62 million and/or imprisonment for 20 years.

Other penalties include:

  1. Category 1 offence – Reckless conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness
    • $300,000 and/or 5 years imprisonment for individuals (other than as a PCBU or as an officer);
    • $600,000 and/or 5 years imprisonment for individuals as a PCBU or as an officer;
    • $3,000,000 for a body corporate.
  2. Category 2 offence – Failure to comply with health and safety duty that exposes an individual to a risk of death or serious injury or illness
    • $150,000 for individuals (other than as a PCBU or as an officer);
    • $300,000 for individuals as a PCBU or as an officer;
    • $1,500,000 for a body corporate.
  3. Category 3 offence – Failure to comply with health and safety duty
    • $50,000 for individuals (other than as a PCBU or as an officer);
    • $100,000 for individuals as a PCBU or as an officer;
    • $500,000 for a body corporate.

Insurability

The ACT does not currently have penalties against insurability.

Northern Territory – Work Health and Safety (National Uniform Legislation) Act 2011 (NT)

Industrial manslaughter

The Work Health and Safety (National Uniform Legislation) Amendment Act 2019 commenced on 1 February 2020, which includes an industrial manslaughter offence.

Penalties

If convicted of industrial manslaughter, the maximum penalties apply:

  • Life imprisonment for an individual; or
  • $10,270,000 (65,000 penalty units) under 2020-21 penalty unit rate.

Other penalties include:

  1. Category 1 offence – Reckless conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness
    • $300,000 and/or 5 years imprisonment for individuals (other than as a PCBU or as an officer);
    • $600,000 and/or 5 years imprisonment for individuals as a PCBU or as an officer;
    • $3,000,000 for a body corporate.
  2. Category 2 offence – Failure to comply with health and safety duty that exposes an individual to a risk of death or serious injury or illness
    • $150,000 for individuals (other than as a PCBU or as an officer);
    • $300,000 for individuals as a PCBU or as an officer;
    • $1,500,000 for a body corporate.
  3. Category 3 offence – Failure to comply with health and safety duty
    • $50,000 for individuals (other than as a PCBU or as an officer);
    • $100,000 for individuals as a PCBU or as an officer;
    • $500,000 for a body corporate.

Insurability

Northern Territory does not currently have penalties against insurability. 

NSW – Work Health and Safety Act 2011 (NSW)

Industrial Manslaughter

NSW WHS laws currently do not recognise industrial manslaughter as an offence. Instead, a person may be prosecuted for manslaughter for the death of a person at work under the Crimes Act 1900 (NSW), punishable by imprisonment for 25 years. Category 1 offences, which are the most serious breaches where a PCBU recklessly exposes a person to the risk of death or serious injury, in NSW also carry a potential jail term of 5 years for an individual in addition to a fine.

Penalties

The amending legislation has also increased WHS fines and introduced a penalty unit system:

  • The maximum fine for a category 1 offence (reckless conduct which exposes a person to the risk of death or serious injury) has increased from $3 million to $3,463,000 for a body corporate.
  • The maximum fines for a category 2 offence (failure to comply with a health and safety duty that exposes a person to the risk of death, serious injury or illness) has increased from $1.5 million to $1,731,500 for a body corporate.
  • The maximum fine for a category 3 offence (failure to comply with a health and safety duty) has increased from $500,000 to $577,000 for a body corporate.

Insurability

On 10 June 2020 the Work Health and Safety Amendment (Review) Act 2020 (NSW) commenced, making it unlawful to enter into, provide or benefit from an insurance or indemnity arrangement for a WHS fine in NSW. You may read more about it here.

Insurance for WHS fines and penalties is still lawful in all states and territories other than NSW. Such fines and penalties apply prospectively, rather than retrospectively. This means that it is not unlawful where the insurance or indemnity arrangement was in place before the WHS Act commenced, and the payment relates to an incident that occurred before 10 June 2020.

Queensland – Work Health and Safety Act 2011 (QLD)

Industrial Manslaughter

Queensland introduced industrial manslaughter in 2017 and the offences sit within the Queensland WHS Act, Electrical Safety Act 2002 (QLD) and the Safety in Recreational Water Activities Act 2011 (QLD).

The Mineral and Energy Resources and Other Legislation Amendment Act 2020 (QLD) was passed in Queensland Parliament during May, introducing industrial manslaughter as an offence into all resources laws including:

  • Coal Mining Safety and Health Act 1999
  • Mining and Quarrying Safety and Health Act 1999
  • Explosives Act 1999
  • Petroleum and Gas (Production and Safety) Act 2004

These laws mirror provisions already contained in the WHS Act but specifically apply to employers and senior officers in the mining industry and resources sector. Liability will extend to corporations and individuals for industrial manslaughter if a worker dies as a result of the employer’s negligent conduct.

Insurability

Queensland does not currently have penalties against insurability.

Penalties

If convicted under these new laws, individuals who are employers and senior officers could face up to 20 years’ imprisonment and corporations could be subject to a fine of up to $13 million.

Following the offence for industrial manslaughter, the next highest offence is a category 1 offence.

  1. Category 1 offence – Reckless conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness
    • $300,000 and/or 5 years imprisonment for individuals (other than as a PCBU or as an officer);
    • $600,000 and/or 5 years imprisonment for individuals as a PCBU or as an officer;
    • $3,000,000 for a body corporate.
  2. Category 2 offence – Failure to comply with health and safety duty that exposes an individual to a risk of death or serious injury or illness
    • $150,000 for individuals (other than as a PCBU or as an officer);
    • $300,000 for individuals as a PCBU or as an officer;
    • $1,500,000 for a body corporate.
  3. Category 3 offence – Failure to comply with health and safety duty
    • $50,000 for individuals (other than as a PCBU or as an officer);
    • $100,000 for individuals as a PCBU or as an officer;
    • $500,000 for a body corporate.
South Australia – Work Health and Safety Act 2012 (SA)

Industrial manslaughter

There has been an introduction of the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2019. However, industrial manslaughter is not a specific offence in South Australia yet.

Penalties

In South Australia, the offences and penalties are structured into three different categories:

  1. Category 1 offence – Reckless conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness
    • $300,000 and/or 5 years imprisonment for individuals (other than as a PCBU or as an officer);
    • $600,000 and/or 5 years imprisonment for individuals as a PCBU or as an officer;
    • $3,000,000 for a body corporate.
  2. Category 2 offence – Failure to comply with health and safety duty that exposes an individual to a risk of death or serious injury or illness
    • $150,000 for individuals (other than as a PCBU or as an officer);
    • $300,000 for individuals as a PCBU or as an officer;
    • $1,500,000 for a body corporate.
  3. Category 3 offence – Failure to comply with health and safety duty
    • $50,000 for individuals (other than as a PCBU or as an officer);
    • $100,000 for individuals as a PCBU or as an officer;
    • $500,000 for a body corporate.

Insurability

South Australia does not currently have penalties against insurability. 

Tasmania – Work Health and Safety Act 2012 (TAS)

Industrial manslaughter

Industrial manslaughter is not currently an offence in Tasmania.

Penalties

In Tasmania, there are three categories of offences:

  1. Category 1 offence – Reckless conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness
    1. $300,000 and/or 5 years imprisonment for individuals (other than as a PCBU or as an officer);
    2. $600,000 and/or 5 years imprisonment for individuals as a PCBU or as an officer;
    3. $3,000,000 for a body corporate.
  2. Category 2 offence – Failure to comply with health and safety duty that exposes an individual to a risk of death or serious injury or illness
    1. $150,000 for individuals (other than as a PCBU or as an officer);
    2. $300,000 for individuals as a PCBU or as an officer;
    3. $1,500,000 for a body corporate.
  3. Category 3 offence – Failure to comply with health and safety duty
    1. $50,000 for individuals (other than as a PCBU or as an officer);
    2. $100,000 for individuals as a PCBU or as an officer;
    3. $500,000 for a body corporate.

Insurability

Tasmania does not currently have penalties against insurability.

Victoria – Occupational Health and Safety Act 2004 (Vic)

Industrial manslaughter

Industrial manslaughter provisions were introduced and came into effect 1 July 2020. This is not an additional duty for employers, organisations and duty holders, but rather a stronger and tougher deterrent to comply with relevant occupational, health and safety legislation.

Penalties

As of 1 July 2020, if convicted of manslaughter the following penalties apply:

  • A maximum of 25 years imprisonment for individuals; and
  • A maximum fine of $16.5 million for body corporates. (100,000 penalty units)

Other (maximum) penalties include:

  1. Reckless conduct that may place a person at a workplace in danger of serious injury:
    • $297,396 (1800 penalty units) and/or 5 years imprisonment for an individual; and
    • $3,304,400 (20,000 penalty units) for a body corporate
  2. Failure to comply with health and safety duty, without reckless endangerment:
    • $297,396 (1800 penalty units) for an individual; and
    • $1,486,980 (9000 penalty units) for a body corporate

Insurability

Victoria does not currently have penalties against insurability. 

Western Australia – Occupational Safety and Health Act 1984 (WA)

Recent updates

The Work Health and Safety Bill 2019 was passed by the Legislative Council on 21 October 2020.  It is anticipated it will receive royal assent soon after consideration of amendments by the Legislative Assembly in November.

The new Work Health and Safety Act (WHS Act) will replace the current Occupational Safety and Health Act 1984 (WA), and elements of the Mines Safety and Inspection Act 1994 and the Petroleum and Geothermal Energy Safety Levies Act 2011 that relate to work health and safety.

The new laws is intended to offer greater protection to workers, capturing modern employment relationships, such as subcontractors or casual workers, not just the classic employer/employee relationship. In particular, they will introduce the term ‘person conducting a business or undertaking’ also known as PCBU.

Industrial Manslaughter

The WHS Bill provides two new industrial manslaughter offences for breaches of a duty involving a death: 

  1. ‘Industrial Manslaughter – simple offence’ arises when a PCBU owes a health and safety duty but fails to comply with the duty and the failure causes the death of an individual.
  2. ‘Industrial Manslaughter – crime’ is the more serious offence and is a criminal offence. This offence arises when a PCBU has a health and safety duty and engages in conduct that causes the death of an individual (therefore failing to comply with the duty) and the conduct is engaged in knowing that the conduct is likely to cause the death of an individual, or with disregard of that likelihood. Proceedings in respect of this offence may only be commenced by the Director of Public Prosecutions.

An officer of a PCBU could also be charged with industrial manslaughter offences but additional elements of the offence must be proven. This includes establishing that the PCBU’s conduct was attributable to any neglect on the part of the officer, or if the conduct was engaged in with the officer’s consent or connivance. So both a company and an individual officer could be charged with industrial manslaughter.

  • The simple offence attracts a maximum penalty of 10 years imprisonment and a fine of $2,500,000 for an individual or a fine of $5,000,000 for a body corporate.
  • The criminal offence attracts a maximum penalty of 20 years imprisonment and a $5,000,000 fine for an individual or a fine of $10,000,000 for a body corporate.

Penalties

In 2018, the WA Government passed legislation to increase workplace safety and health offence penalties, under the Occupational Safety and Health Act 1984 (OSH Act)  and the Mines Safety and Inspection Act 1994 (MSI Act). Currently, maximum penalties for a body corporate include:

  • Level 1 penalties (breach of duty) increased from $50,000 to a $450,000 maximum for the first offence;
  • Level 2 penalties (breach of duty exposing individual to risk of death or serious harm) increased from $200,000 maximum to $1.5 million for the first offence;
  • Level 3 penalties (breach resulting in serious harm or death) increased from $400,000 maximum to $2 million for the first offence; and
  • Level 4 penalties (gross negligence causing death or serious harm) increased from $500,000 to a maximum of $2.7 million;
  • The changes include increasing the maximum term of imprisonment from two years to five years.
  • The WHS Bill proposes the following penalties:
    • Category 1 offence – Reckless conduct; Individual 5 years imprisonment + $680,000 and; Corporation $3,500,000
    • Category 2 offence – Failure to comply & exposes individual to risk of death / serious injury; Individual $350,000 and; Corporation $1,800,000
    • Category 3 offence – Failure to comply with duty; Individual $120,000 and; Corporation $570,000
Penalty Individual Corporation
Category 1
Reckless conduct
5 years imprisonment + $680,000 $3,500,000

Category 2
Failure to comply & exposes individual to risk of death / serious injury

$350,000 $1,800,000
Category 3
Failure to comply with duty
$120,000 $570,000

Insurability

Under the new WHS Bill, insurance or indemnities for monetary penalties under WHS laws will also be prohibited. The proposed penalties include a fine of $55,000 for an individual and $285,000 for a body corporate.

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