Industrial Manslaughter legislation on the way in WA

The director of MT Sheds (WA) Pty Ltd, Mark Thomas Withers, was sentenced two years and two months imprisonment (18 months suspended) and fined $2,250 for gross negligence causing death in relation to the 2020 death of a young worker and the serious injury of another. Both Mr Wither’s and his company pleaded guilty to the charges in what was the first custodial sentence for a safety prosecution in Western Australia under the current regime. The company was also fined $605,000, which WorkSafe WA said is the highest ever imposed under the Occupational Safety and Health Act (WA).

The incident occurred when the two workers were installing roof sheets on a large machinery shed they were building on a farm without safety control measures in place. Neither of the workers were licensed for the work they were performing, and the worker who was killed did not hold a construction induction training certificate.

This case shows that it is possible for both hefty fines and custodial sentences to be handed down even without specific industrial manslaughter legislation in place. However, the impending implementation of the Work Health and Safety Act 2020 (WA) (WHS Act) in Western Australia, which will introduce the offence of industrial manslaughter to Western Australia, will increase the possible penalties and possible jail time even further. If found guilty of the offence under the WHS Act, it can result in individuals being liable for a maximum fine of $5,000,000 and/or up to 20 years imprisonment and corporations for a maximum fine of $10,000,000. The WHS Act will operate to require officers to carry out due diligence in relation to their operations, failure to do so may see officers liable in the event of a fatality.

Occupational health and safety in Western Australia is currently governed principally by the Occupational Safety and Health Act 1984 (WA) (OSH Act). The WHS Act will incorporate the OSH Act and the Mines Safety and Inspection Act 1994 (WA) into one piece of legislation. This is expected to occur on 1 January 2022. The change will bring Western Australia in line with Queensland, Victoria and the ACT, which have all introduced an ‘industrial manslaughter’ offence.

In those other States and Territories, regulators have proven willing to prosecute industrial manslaughter cases although there has only been one conviction thus far, in which the directors of a Brisbane auto recycler were handed 10 month suspended jail terms for their role in a worker’s death. In that case, a $3 million penalty out of a maximum $10 million was imposed on Brisbane Auto Recycling Pty Ltd for industrial manslaughter.

In light of this, we recommend employers and individual officers promote and instil a culture of safety in their organisations and undertake an assessment of their safety policies and procedures to ensure compliance with laws in existence and proposed. It is important that officers not only know their safety policies and procedures, but that they believe in them and trust them too. Gadens can assist with training and implementation of policies to ensure organisations and officers are best placed to comply with workplace health and safety obligations.

Should you wish to discuss how this new legislation may affect your business, please get in touch with our team.

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Authored by:

George Haros, Partner
William Marshall, Senior Associate
Grant Klemm, Lawyer