A Melbourne stonemasonry business has been penalised $1.3 million while its sole director has avoided jail and fines in the first completed prosecution in the Supreme Court of Victoria (VSC), under Victorian industrial manslaughter laws, which were introduced in 2020.
In this decision, the trial judge Justice Michael Croucher (Croucher J) recounted the tragic events in 2021 that led to a 25-year-old sub-contractor being crushed to death when a forklift operated by the owner of LH Holding overturned.
Under the Victorian Occupational Health and Safety Act 2004 (Vic), employers that negligently cause a workplace death currently face fines of more than $18 million, and individuals up to 20 years’ jail. Croucher J noted further that the director and LH Holding had agreed to pay the sub-contractor’s mother $120,000 compensation. Ultimately, he said, a 200-hour community correction order and an order to complete a forklift operation course was the appropriate sentence rather than a fine and incarceration.
The relevance of the Victorian decision we have referred to above to the WA jurisdiction, is reinforced by the fact that to date, there has not been a finalised prosecution for industrial manslaughter in WA. We have explored industrial manslaughter in more detail below, with specific reference to the Western Australian provisions and the real estate industry.
The recent changes to the Commonwealth Work Health and Safety Act 2011 (Cth) (Cth WHS Act) introduced an industrial manslaughter offence to the Federal legislation, which carries a maximum penalty of $18 million for a body corporate and 25 years imprisonment for an individual.
However, it is important to note that the Cth WHS Act, would not apply to the Real Estate industry and would only be relevant to a very small group of Commonwealth departments and agencies, certain federal public authorities and non-Commonwealth licensee companies.
The offence of industrial manslaughter is already in force in the majority of states and territories in Australia, under the corresponding state’s work health & safety legislation (including Western Australia). For example, in the context of Western Australia, the Work Health and Safety Act 2020 (WA) (WA WHS Act) includes provisions relating to industrial manslaughter.
On 31 March 2022 industrial manslaughter, became a criminal offence in Western Australia as part of the WA WHS Act. Specifically, the WA WHS includes a definition for industrial manslaughter, which for ease of reference is provided in the table below.
In summary, the above sections provide that, for an individual (e.g. a worker, or a PCBU), an officer (as defined) or a body corporate to be found guilty of industrial manslaughter, the prosecution will need to establish, “beyond reasonable doubt”, that the person knew their conduct was likely to cause the death of, or serious harm to, an individual and they acted in disregard of that likelihood.
It is also important to keep in mind that even if the elements of industrial manslaughter cannot be made out, an individual (e.g. a worker, or a PCBU), an officer (as defined) or a body corporate that fails to comply with a health and safety duty can still be guilty of an offence, which are categorised, as follows:
In our opinion real estate is not an industry that faces significant exposure from the new provisions relating to industrial manslaughter. This is for several reasons, including but not limited to the fact there is minimal high-risk work that is required in this industry and the majority of the work is administrative and “office-based”.
However, this does not mean the new legislative provisions do not create any additional risk for the real estate industry in that it appears Industrial manslaughter will likely extend to workplace deaths arising from psychiatric trauma, including but not limited to those arising from bullying or other forms of abuse / treatment. Some ways industrial manslaughter prosecution could potentially arise in a real estate context, include the following circumstances:
In any event, for employers to ensure they are protected they should ensure all health and safety policies are up to date (e.g fatigue management, sexual harassment policy etc.). Also that all vehicles and equipment are regularly maintained and in good working order.
Written By Michael Franzone – Associate, Workplace Relations
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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