The WA Parliament recently passed the Work Health and Safety Bill 2019, which contains new industrial manslaughter provisions. However, it is unlikely that this will come into effect before late 2021.
NECA WA has been very vocal in its opposition of some of these manslaughter provisions, but as they have now been amended, we are satisfied with the result.
In summary, Section 30A is now the only clause that deals with industrial manslaughter. NECA WA has never opposed this clause as it deals with incidences where gross negligence is present.
NECA WA strongly recommends that all employers and their officers note the new legislation will replace the existing Occupational Health and Safety Act 1984 and does still contain new provisions concerning industrial manslaughter.
S. 30A. Industrial manslaughter — crime
(1) A person commits a crime if —
(a) the person has a health and safety duty as a Person Conducting a Business or Undertaking and
(b) engages in conduct that causes the death of an individual; and
(c) the conduct constitutes a failure to comply with the person’s duty; and
(d) the person engages in the conduct —
(i) knowing that the conduct is likely to cause the death of an individual; and
(ii) in disregard of that likelihood.
Note that an officer may be held liable where:
The maximum penalties for industrial manslaughter are:
Section 31 was amended to replace Section 30B which was the section that NECA WA strongly opposed.
Unlike the previous Section 30B, Section 31 allows the prosecution of an employee whose conduct causes a work place death or serious injury. Previously, the legislation only held owners, senior management and Board Members liable.
Section 31 of this new legislation creates a new offence and a person who;
(a) has a health and safety duty; and
(b) fails to comply with that duty; and
(c) the failure causes death or serious harm to an individual;
can be found guilty of this Category 1 offence and liable to a maximum penalty as follows:
(a) for an individual - imprisonment for 5 years + a fine of $680 000;
(b) body corporate - a fine of $3.5M.
All employers, officers and employees must ensure they take all reasonable and practicable steps to ensure compliance with health and safety duties under the new legislation.
So what is reasonably practicable? — that is, what is reasonably able to be done in relation to ensuring health and safety, taking into account all relevant matters including —
(a) the likelihood of the hazard occurring; and
(b) the degree of harm that might result; and
(c) what the person concerned knows, or ought reasonably to know, about —
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated, including whether the cost is grossly disproportionate.
The rule of thumb remains the same for all contractors - ensure that you have appropriate WHS policies and procedures in place. Train and regularly update your staff on these policies and procedures and ensure that you and your supervisors enforce them on-site.
Whilst no system in infallible, such actions will go a long way to helping to show, that in the event of a workplace death or serious injury, your business had taken all reasonable and practical steps to ensure your compliance with the new WHS laws.
One final note on this legislation is that a person cannot be indemnified or insured against any fines imposed under this legislation.
Disclaimer: This summary is a guide only and is not legal advice. For more information on work health and safety legislation, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email email@example.com.