NSW takes a further step towards an industrial manslaughter offence

PCBUs and senior officers take note 2 min read

On 5 May 2021 the NSW Government introduced the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 (the Bill), in a further step towards creating an industrial manslaughter offence in the state.

Key takeaways

The Bill creates a new industrial manslaughter offence under the Work Health and Safety Act 2011 (NSW), for persons conducting a business or undertaking (PCBU) and for senior officers of a PCBU.

A PCBU or a senior officer could be liable for a maximum penalty of 25 years’ imprisonment for an individual, or over $10 million for a body corporate.

Under the proposed legislation, a PCBU or a senior officer commits an offence if:

• a worker or other person dies at the workplace, or is injured at the workplace and later dies, whether or not in the course of carrying out work for the business or undertaking; and
• the PCBU or senior officer's conduct causes the death, and the PCBU or senior officer was negligent or reckless about causing the death by their conduct.

For the conduct to have caused the death, it is enough that it substantially contributes to the death. That conduct may be either an act or an omission.

Currently in NSW a workplace death may constitute manslaughter. This proposed amendment follows the introduction of an industrial manslaughter offence in other jurisdictions after the release of the Boland report in 2019.

How does this affect you?

• 'Senior officers' are defined in the proposed amendments, but steps should be taken to clarify who in your organisation could be held accountable if the amendments are passed.
• PCBUs and others with work health and safety duties should keep up to date with the changes.