On 4 September 2023, Employment and Workplace Relations Minister Tony Burke introduced into Parliament the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill), outlining significant changes to the Work Health and Safety Act 2011 (Cth) (WHS Act).
Key proposed amendments include:
- the introduction of an industrial manslaughter offence;
- changes that may expose bodies corporate and the Commonwealth to liability based on the conduct of defined persons within the entities; and
- substantial increases to financial penalties across the WHS Act.
The proposed industrial manslaughter offence, which would be inserted as a new section 30A to the WHS Act, will apply to officers and persons conducting a business or undertaking (PCBUs) whose negligent conduct or recklessness causes the death of an individual.
The offence was recommended by Marie Boland's 2018-19 independent review of the national model WHS laws. It was subsequently introduced in the Australian Capital Territory, Northern Territory, Queensland, Victoria and Western Australia. New South Wales and South Australia have also proposed similar legislation.
The offence applies to a PCBU or officer (as defined in sections 4 and 5 of the WHS Act, respectively) who has a duty under the WHS Act. It contains the following additional elements:
- the person intentionally engages in conduct; and
- the conduct breaches their duty under the WHS Act; and
- the conduct causes (i.e. at least substantially contributes to) the death of an individual; and
- the person was reckless or negligent (as defined in the Criminal Code) as to whether the conduct would cause the death of an individual.
Assessing liability and penalties
The proposed penalties for industrial manslaughter are a maximum of 25 years' imprisonment for individuals and a fine of $18 million for bodies corporate or the Commonwealth. The maximum imprisonment for individuals reflects manslaughter penalties in the Criminal Code, while the financial penalty for bodies corporate seeks to act as a clear and effective punishment and deterrent against breaching WHS duties.
Under the proposed changes, a PCBU or officer will be prevented from entering into an enforceable undertaking (EU) in response to a contravention of the industrial manslaughter offence. An EU is a legally enforceable agreement involving a duty holder promising to take agreed actions, in relation to an industrial manslaughter offence.
New subsection 30A(4) enables a court to find the defendant guilty of either a Category 1 or Category 2 offence as an alternative verdict.
An element of the offence requires proof that a PCBU or officer engaged in conduct that contravened the WHS Act, and that this contravention caused the death of the person that was owed the duty.
Mistake is a possible defence to the offence if the person can adduce evidence of an honest and reasonable, but mistaken, belief in the existence of certain facts. If found to be true, the conduct would be deemed not to have constituted the offence.
There will be no limitation period for bringing proceedings for an industrial manslaughter offence. Other offences under the WHS Act generally must be prosecuted within two years of Comcare becoming aware of the contravention.
Attribution of liability
The Bill also proposes to change how criminal responsibility for bodies corporate and the Commonwealth is dealt with in respect to offences under the WHS Act.
The changes will mean that the conduct of:
- officers, employees and agents acting within their actual or apparent authority (defined as 'authorised persons'); and/or
- the board of directors for a body corporate,
can be attributed to a body corporate.
Proposed new sections 244A and 244B of the WHS Act would also allow for aggregation of conduct, such that the same individual would not need to have engaged in the relevant conduct and also hold the relevant state of mind in order to prove an offence against a body corporate.
This represents a broader approach than set out in the Criminal Code (which previously applied), with the Federal Labor Government citing alignment with the model work health and safety laws as the rationale for the approach.
Part 4 of the Bill allows for criminal liability to be attributed to the Commonwealth in a similar way to a body corporate and captures the conduct of executives, officers and authorised persons. It confirms there is no Crown immunity from criminal prosecution.
The Bill also strengthens the offences and penalties framework within the WHS Act by:
- increasing penalty amounts across the WHS Act by just under 40 per cent;
- inserting a mechanism to increase penalties annually in line with national consumer price index (CPI) changes; and
- increasing penalties for the Category 1 offences to $15 million for bodies corporate and a maximum term of imprisonment to 15 years for individuals.
This represents a significant increase, even compared to 1 July 2023 changes implemented by Safe Work Australia, which increased the category-1 penalties from $3 million to $10,425,000 for bodies corporate, and from five years' jail to 10 years' jail for individuals.
The Explanatory Memorandum describes that offences should have penalties that are adequate to deter and punish a worst-case offence. Higher maximum penalties are justified where there are strong incentives to commit the offence, or where its consequences are particularly dangerous or damaging.
For more information about the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 and how the changes might apply to your organisation, please contact Lander & Rogers' workplace relations and safety legal experts.
Image by Robert Linder on Unsplash.
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