On 4 June 2024, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (WHS Bill) was introduced into the NSW Legislative Assembly to amend the Work Health and Safety Act 2011 (NSW) by creating an offence of industrial manslaughter. If passed, the WHS Bill will set some of the highest WHS penalties in Australia, with individuals found guilty of industrial manslaughter facing up to 25 years in prison, while corporations could be fined up to $20 million.

The proposed offence

NSW is one of the last mainland states to introduce a dedicated industrial manslaughter offence, aligning it with other states that have already enacted similar laws. Under the WHS Bill, the proposed offence will be committed where a person:

• has a health and safety duty; and
• is a persons or an Officer of a person, conducting a business or undertaking (PCBU); and
• engages in certain conduct, by an act or omission, that caused the death of a worker or another individual, to whom the person’s health and safety duty is owed; and
• engages in conduct with gross negligence.

As made clear in the second reading of the WHS Bill, the proposed offence will cover those individuals whose behaviour or decisions have the power to influence the activities and culture of a workplace (i.e. officers of a PCBU).

Interestingly, the WHS Bill attempts to provide guidance on when a body corporate may be considered grossly negligent. According to the WHS Bill, a PCBU may be grossly negligent if there are inadequate corporate management, control or supervision of the conduct (act or omission) of one or more authorised persons (defined in the existing WHS Act as an officer, employee or agent acting within their actual or apparent authority), or a failure to provide adequate systems for conveying relevant information to relevant persons within the body corporate. This formulation is unhelpful and creates more questions than answers. For example, conduct may be readily established where multiple rogue individuals do not adhere to systems implemented or promoted by the business, exposing the PCBU and other officers. The Bill does not define what constitutes inadequate corporate management, control and supervision. Additionally, there is no clear standard for what makes a system for conveying information inadequate or who the ‘relevant persons’ are within the body corporate.

Other notable sections of the WHS Bill

No time limitation period for prosecutions: There is no limitation period for prosecuting industrial manslaughter offences. This means that legal proceedings can be initiated at any time following the offence.

Alternative verdicts: If a prosecution for industrial manslaughter is initiated and the court finds the individual or PCBU not guilty of industrial manslaughter, the court may still convict for a Category 1 offence, even if the time limitation period for a Category 1 offence has lapsed. This alternative charge is consistent with industrial manslaughter provisions across Australia. However, unlike other industrial manslaughter laws, NSW’s proposed provisions lack the requirement to afford the defendant procedural fairness concerning the alternative Category 1 offence.

Exemption for volunteers: The industrial manslaughter offence is not intended to apply to volunteers.

Enforceable undertakings: Enforceable undertakings cannot be accepted by the regulator for contravention of an alleged industrial manslaughter offence. This is consistent with the current approach taken to a Category 1 offences.

Establishment of special unit: In addition to the WHS Bill, the NSW Government proposes to establish a special unit within the Office of the Director of Public Prosecutions that will be responsible for prosecuting industrial manslaughter cases.

Increased penalties

Under the new bill, individuals found guilty of industrial manslaughter could face up to 25 years in prison, while corporations could be fined up to $20 million. These penalties are significantly higher than the current maximums under the WHS Act, which are $399,479.85 and/or five years’ imprisonment for individuals, and $3,992,492.70 for PCBUs. The highest court-imposed WHS fine to date stands at $2,025,000. The new industrial manslaughter laws represent a dramatic increase in the maximum penalties.[1]

Below is a comparison of industrial manslaughter penalties across the Australian jurisdictions:[2]

Jurisdiction	Industrial manslaughter law	Maximum penalties
Commonwealth	In force from 1 July 2024	Individual: 25 years’ imprisonment Body corporate: $18,000,000
ACT	Law in force	Individual: 20 years’ imprisonment Body corporate: $16,500,000
SA	In force from 1 July 2024	Individual: 20 years imprisonment Body corporate: $18,000,000
QLD	Law in force	Individual: 20 years’ imprisonment Body corporate: $15,480,000
WA	Law in force	Individual: 20 years imprisonment and a fine of $5,000,000 Body corporate: $10,000,000
VIC	Law in force	Individual: 25 years’ imprisonment Body corporate: $19,231,000
TAS	No law in force	N/A
NT	Law in force	Individual: imprisonment for life Body corporate: $11,440,000

Implications for Employers

While the new industrial manslaughter laws does not change the obligations of individuals and PCBUs duties under the WHS Act, the significant penalties that will apply following conduct that causes the death of a worker heightens the importance of taking a proactive approach to meeting those duties.

The duties under the current WHS Act already require individuals and PCBUs to ensure the health and safety of workers and others affected by their operations, as far as is reasonably practicable. These duties remain unchanged with the introduction of the industrial manslaughter laws. These laws only introduce more severe penalties for breaches that result in fatalities, but also create uncertainty in relation to what exact conduct will constitute gross negligence by way of inadequate corporate management, control or supervision of the conduct or authorised person(s)  or the failure to provide adequate systems for conveying relevant information to relevant persons. The WHS Bill is yet to be debated in Parliament, and changes may occur during this process. Kingston Reid will provide updates as the changes develop.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing businessdevelopment@kingstonreid.com.

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

[1] As at June 2024. Penalties will increase in July 2024.

[2] As at June 2024.

 

John Makris Partner +61 2 9169 8407 john.makris@kingstonreid.com

George Stent Associate +61 2 9169 8421 george.stent@kingstonreid.com

The NSW Government says several deaths at workplaces over the past week serve as a sad reminder to employers and businesses about safety.

In 2022, there was approximately 1 workplace fatality a week in NSW but in the past 4 days 5 people have died at NSW workplaces, including:

SafeWork is also investigating a 1 February fatal motorbike incident on a property 120km east of Tibooburra.

SafeWork has also been notified of several workplace incidents which resulted in serious injuries including an incident on 27 January where a construction worker fell around 3-4 metres from a scaffold in Eastwood, resulting in serious head injuries.

Business owners must ensure workers, especially those involved in high-risk areas such as working at heights, electrical and moving plant and machinery, are properly trained and instructed on how to do their job safely.

Workers who have concerns about workplace health and safety can anonymously contact SafeWork on 13 10 50 or through the Speak Up Save Lives app.

SafeWork has developed a toolkit for business owners so they can ensure they have workplaces that promote effective work health and safety.

Further details about workplace safety including working with electricity, forklifts, farm safety and working at heights in construction can be found on the SafeWork NSW website.

Minister for Work Health and Safety Sophie Cotsis said:

“Five deaths in 4 days is a tragedy and my condolences are with families, friends and colleagues of those who have sadly lost their lives.

“Following a well-deserved break, employees should feel they can come back to work and be safe.

“Business owners must ensure their employees are always practicing safe work practices, and, as we head into February, these deaths serve as a tragic reminder to make sure workplaces are up to date with safety equipment and compliance.”

Big River Group, a leading supplier of building materials and panels, proudly announces a strategic rebranding initiative aimed at fortifying its market position by unifying the company’s diverse portfolio of brands to foster synergies and coherence across its business operations.

John Lorente, CEO of Big River Group, emphasised the rebranding is a proactive step to streamline operations, create unity across the business and unlock new opportunities for growth. "By aligning our local service excellence with our national scale, we aim to enhance our operational efficiencies while driving excellence and innovation in our solutions to better serve our customers, suppliers, and shareholders," stated Lorente.

Big River Group manufactures a range of construction products including timber and steel formwork, timber flooring, plywood and decorative panels, as well as distributing a broad range of other building products from well-known local and international suppliers, focussing primarily on the commercial and residential, civil and infrastructure construction trade market segments.

With a legacy spanning over 120 years, Big River Group is positioned for future growth while remaining steadfast in its commitment to stakeholders. "We understand the importance of clarity and consistency in how we represent ourselves to the market. Our rebranding effort signifies more than just a visual transformation; it leverages our extensive experience and service autonomy across the group, empowering the company to adapt swiftly to evolving market dynamics while maintaining a steadfast focus on customer satisfaction. By consolidating our resources and expertise under a cohesive brand identity, Big River Group is poised to capitalise on synergies and drive sustained growth in the years to come,” Lorente added.

“There is a need to represent ourselves as one Big River team showcasing our capability for our customers and suppliers. Our mission, ‘Committed to doing good business with good people to build better projects,’ serves as a testament to our commitment to operating as one team, delivering exceptional value and product solutions to the market," said Lorente.

Key highlights of the rebranding initiative:

As Big River Group embarks on this journey, daily operations will not be affected, its wide product range, services and exceptional team remain unaffected, ensuring a seamless transition for customers and stakeholders. Big River Group remains committed to delivering innovative products and services without interruption.

The phased roll-out of the rebranding initiative will commence with the introduction of the new logo, followed by subsequent brand assets throughout the year. Big River owns and manages 26 sites across Australia and New Zealand expanding Panels, Building Trade Centres and Commercial divisions.

For more information on Big River please contact:

1300 88 1958 | www.bigrivergroup.com.au

Tougher penalties for offences under Commonwealth work health and safety laws are now in force across the Comcare jurisdiction.

The changes are part of the Fair Work Legislation Amendment (Closing Loopholes) Act that passed parliament in December 2023. The legislation amends the Work Health and Safety Act 2011 (WHS Act) to include:

The Closing Loopholes legislation also amends the WHS Act to introduce the offence of industrial manslaughter for causing a workplace death through negligent conduct or recklessness. The new offence will apply to officers and PCBUs. Taking effect on 1 July 2024, the offence carries maximum penalties of $18 million for bodies corporate or the Commonwealth and 25 years’ jail for individuals.

A further WHS Act amendment will establish a Family and Injured Workers Advisory Committee by the end of 2024. The Committee will provide advice to the Minister for Employment and Workplace Relations, and Comcare, on the support needs of those affected by a serious workplace incident and help inform relevant policies and strategies.

More information

WHS laws are changing | Comcare

• Go to Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 - Revised Explanatory Memorandum
• Go to WHS reforms, including industrial manslaughter - Department of Employment and Workplace Relations

Workplace Health and Safety Queensland (WHSQ) inspectors have started a safety compliance blitz of the state’s construction businesses that will continue for the rest of the year.

Inspectors are currently visiting sites to check safety requirements are being met across six high-risk areas:

• work at heights
• formwork
• concrete pumping
• scaffolding
• mobile plant (civil construction)
• mid-rise construction.

The blitz will also have a focus on young workers and apprentices, as data shows these are some of the most vulnerable workers at construction sites.

Across all industries, work-related incidents claim the lives of approximately 40 people every year in Queensland and there are more than 24,000 serious, often life-changing injuries.

Taking steps to manage risks is a condition of doing business in Queensland – everyone has the right to be safe at work and employers should be doing everything in their power to make that happen. If requirements are not being met, inspectors will take enforcement action.

Ensure your business is aware of its obligations and has systems in place to manage risks effectively at your workplace.

What training are you giving your formworkers?

Can you demonstrate (and show records) that you have provided 'meaningful and relevant training for workers delivered in a way they can understand'.

If not the read on ....

As we have written before, compliance with the safety training requirements outlined in the Work Health and Safety (WHS) Act can be a challenging aspect for these skilled workers. 

The recently released 'Australian Work Health and Safety Strategy 2023-2033' states that companies need to make sure that, on their projects, there is 'meaningful and relevant training for workers delivered in a way they can understand'.

It supports the continuation and strong focus on compliance and enforcement by regulators, with a particular focus on systematic work health and safety (WHS) management. If you don’t have meaningful and relevant training and cannot demonstrate robust WHS management, the risk is that the safety regulators will investigate the quality of your systems, including training and competency, to hold companies and individuals accountable.

WHS laws are risk based and don’t need an incident to occur for a business and its individuals to be liable. It is every employer’s responsibility to make sure their workers get the training, instruction and support they need to keep them safe at work.

The Formwork Industry Association (FIA) in conjunction with their members have developed a new education and skills pathway to overcome the challenges faced by Formworkers. Addressing the compliance issues the initial ‘Safe Formworker Program’ has been designed to provide the following features to ensure construction, civil and formwork companies can comply with their obligations.

1. Tailored Training Programs
   The Safe formworker program is a specialised WHS training program exclusively for formworkers that address their specific needs and challenges. The program covers essential safety protocols, techniques, and technologies relevant to their roles. By addressing the unique needs of formworkers, this specialised training is more relevant and effective in enhancing competency and safety.
2. Government Subsidies and Support
   To alleviate the financial burden, the FIA has secured funding from the NSW Government to provide 1000 free places for formworkers' training and access to the program and App.
3. Flexible Training Delivery
   Offering flexible training options, the program is delivered via a modern mobile learning experience. It enables formworkers to complete their training without significant disruptions to their work schedules, by providing bite-sized mobile courses that can be completed in the shed during toolbox talks. The program also enables employers to support a learning culture that allows workers to upskill during quieter periods.
4. Multilingual Training Materials
   The Safe Formworker Program has been translated into Arabic and has capability to be translated into other languages. This provides training materials in multiple languages to improve accessibility and understanding for non-native English-speaking formworkers. This approach will enhance the learning experience and overall training compliance.
5. Recognition of Prior Learning (RPL)
   Creating formal Recognition of Prior Learning (RPL) processes will allow experienced formworkers to demonstrate their skills and knowledge, gaining credit for their existing expertise toward training compliance. Our new education and skills pathway for formwork will enable these RPL programs to be successful and the App has certain features that allow workers to provide on the job video of their skills.
6. Industry Endorsement
   The Safe Formworker Program is endorsed by a growing number of construction companies that have specifically named the program as an essential compliance requirement in their tender process.

Conclusion

Complying with the training requirements identified in the WHS Act is essential for the safety and well-being of formworkers and those working alongside them. By implementing the Safe Formworker Program, we can bridge the training compliance gap, ensuring that formworkers receive the necessary knowledge and skills to perform their duties safely and efficiently. Collaboration between governments, industry stakeholders, and training providers will be key to fostering a safer and more compliant construction industry.

There has been little change in safety behaviours and recurrent non-compliance by a number of residential construction businesses in the ACT, despite repeated enforcement notices and engagement with WorkSafe ACT inspectors, according to the regulator.

In the 2022-23 financial year, there were 20 businesses issued with between 17 and 83 enforcement notices. These included prohibition, infringement, and improvement notices for a variety of offences, including for high-risk activities like working at heights and scaffolding non-compliance.

Despite being issued with several enforcement notices on multiple occasions, the regulator said some businesses have been repeatedly non-compliant with work health and safety (WHS) laws.

In 2020, WorkSafe ACT developed a residential construction strategy, supported by the launch of operation safe prospect in late 2020.

Since then WorkSafe ACT has undertaken 2101 proactive workplace inspections and had extensive engagement with industry bodies, unions, builders, tradespeople, workers, and their representatives.

During the 2022-23 financial year, WorkSafe ACT visited 868 residential construction sites, issued 44 infringement notices, 1002 improvement notices and 430 prohibition notices.

“Continued non-compliance will not be tolerated. I will now be focusing on investigating and prosecuting identified repeat offenders that are continuously failing to keep their workers safe,” said ACT’s Work Health and Safety Commissioner, Jacqueline Agius.

The Commissioner said some responses to these letters have been concerning, showing a complete lack of understanding of the importance of WHS.

“It is clear to me that some builders in the ACT do not understand their WHS obligations. I want to remind businesses that it is their duty to ensure the health and safety of their workers.

“Having workers across multiple sites at the same time does not dilute your WHS duties.

“It is clear to me some PCBUs in the residential construction industry are on relying on WorkSafe ACT to ensure they have a safe system of work instead of fulfilling their obligations to create a safe workplace for workers.”

The CEO of Master Builders ACT, Michael Hopkins, also said it is important that every employer and worker on a residential building site make safety their number one priority. “People who show repeated and blatant disregard for safety laws have no place in our industry and only make it harder for the many reputable companies who exemplify workplace safety,” he said.

[Original article provided by AIHS]

Nobody in Queensland wanted to read the statistics released by Safe Work Australia this month, but they also should steel our resolve to change our safety culture, so no one is ever forced to endure the pain of losing a loved one to a work-related incident.

[An article from WorkSafe Queensland]

Queensland claimed the second rung on the ladder for the most workplace fatalities last year. We lost 49 of our mates, and the country lost 195. When is enough, enough? We’ve lost too many, and many, far too young.

In 2022, workers aged 45 and over accounted for almost two thirds (62%) of all worker fatalities recorded. Workers aged 65 and over had the highest fatality rate at 6.2 fatalities per 100,000 workers (more than 4 times the overall worker fatality rate of 1.4 fatalities per 100,000 workers). Younger workers aged under 25 years old had the lowest fatality rate (0.8 fatalities per 100,000 workers), closely followed by those aged 25-34 (0.9 fatalities per 100,000 workers).

No-one ever wants to hear these stories, and that includes the safety regulator. We never want to respond to the anguish of a workplace incident but our people turn up over and over to investigate what led to the tragedy so we may learn how to avoid it happening again. We see some of the worst things you could imagine, but we’re in it for you, for your employees and loved ones, so everyone can go to work and get home safely.

While Workplace Health and Safety Queensland is here to provide you with information, tools and resources, and while we have extensive regulatory powers to enforce the laws, it’s the business owners and operators who have the primary obligation to protect our workers.

It's time for the toughest toolbox talk you've had. Don't shy away from these statistics, we all have a responsibility in this. At your disposal is a regulatory arsenal of codes, practical advice, short films, technical guidance, experts and everyday Queenslanders with lived experience who can visit your workplace to get everyone focused on improving health and safety.

What more do you need? Where can we assist you to be stronger? Let us know – safe@oir.qld.gov.au. We want to know your thoughts on creating a better Queensland that lives the values of this proud working state.

Further information

Read the Key work health and safety statistics Australia 2023 report

Access the 'Safe use of Ladders & Stairs' lesson in the Safe Formworker Program via the FIA Safe App.

DOWNLOAD THE FIA SAFE APP

A report released by the Australian Constructors Association (ACA) challenges the widely held belief that underpayment is rampant in the construction sector amid the industry’s increasing insolvency rates.

ACA CEO Jon Davies stated that the report —Trust deficit — revealed that payment performance among construction firms is on par with the rest of the economy and attempts to single out the industry with additional regulation like Project Bank Accounts (PBAs) would actually disrupt the industry.

“According to the Federal Government data, the construction industry pays almost 70 per cent of its invoices on time, aligning closely with the economy-wide average,” said Davies.

Contrary to popular belief, industries such as health and social assistance, IT and the retail sector are less likely than construction to pay their suppliers on time.

Davies said the only valid reason to impose additional regulations like PBAs on head contractors would be if the industry’s payment performance was systematically worse than others and he confirms that this isn’t true.

“PBAs are not a guarantee for subcontractor payment because they don’t reflect the realities of the way construction payments flow. If no money is coming in, there is no money to pay out. We have seen this play out recently in the first test case of Queensland’s PBA laws, where the insolvent builder’s trust accounts held less than 10 per cent of the funds owed to subcontractors,” said Davies.

The report emphasises that the significant restrictions PBA schemes impose on legitimate trade are not justified by the problem they are trying to solve.

Davies explains that PBAs require builders to act as ‘trustees,’ as if they were a solicitor in a property transaction.

He stated that this significant market intervention prevents builders from engaging in essential strategies crucial for business growth and stability.

“Such heavy-handed regulation should not be adopted lightly. It must be based on a compelling case of market failure. That case simply hasn’t been made. There is no question that the construction industry is in a weak financial position. But the answer is not to further hobble one category of business that is already heavily burdened with regulation.

“The answer is to fix the broken commercial model that transfers all the risk to the builder and drives a race to the bottom. We need more collaborative procurement models that focus on delivering (the) best value not (the) lowest price at the tender box,” said Davies.

TRUST DEFICIT REPORT

New laws bring tougher penalties, longer imprisonment and better protections for dust diseases.

The Minns Labor Government has doubled penalties and prison terms under the Work Health and Safety Act 2011 as part of a suite of measures to create safer workplaces across the state.

Under the former government, workplace safety penalties were frozen for nearly 10 years.

Despite an Australia-wide ban on the manufacture, use and importation of asbestos coming into force in 2004, to this day, asbestos continues to still make its way into NSW workplaces.

These new laws will:

The silica register is one part of a comprehensive response the NSW Government is pursuing, including increased silicosis screening, worker education and industry compliances blitzes, while the Commonwealth process nears completion.

Commonwealth WHS Ministers will meet in coming weeks to decide on a new regulatory framework or ban on manufactured stone.

These new laws will also clarify powers and responsibilities of inspectors and the liability of corporations for the actions of officers, employees and agents.

Minister for Work Health and Safety and Industrial Relations, Sophie Cotsis said:

“I’m sick and tired of seeing lives uncessarily lost and people being injured at work. These new laws demonstrate just how seriously this government takes keeping workers safe in NSW.

“Everyone deserves a safe place to work, everyone deserves to come home safely to their family and loved ones”.

The Minns Government will introduce an industrial manslaughter offence in NSW.

The new laws will ensure the most serious work health and safety breaches carry a severe penalty, sending a clear message that those who place a worker’s life at risk will be held to account in the event of a workplace death.

Despite years of campaigning by the families of those killed at work, NSW is the last mainland state without an industrial manslaughter offence or legislation in parliament.

In February 2023, the former government, with other states and territories, agreed to amend model work health and safety laws to allow for jurisdictions to introduce industrial manslaughter.

Industrial manslaughter allows a corporation to be held liable for the death of a person caused by that corporation’s employees within the scope of their work. Manslaughter is the unlawful killing of a human being.

SafeWork will begin an extensive consultation process which will include work health and safety experts, business groups, unions, legal stakeholders and families of people who have been killed at work.

The NSW Government will formally begin the consultation process in coming weeks and intends to introduce a bill to parliament in the first half of next year.

Workers in NSW deserve the right to feel safe at work and these laws are designed to make the state’s workplaces safer.

Minister for Work Health and Safety, Sophie Cotsis said:

“I hope these laws act as such a strong deterrent that no one ever needs to be prosecuted. We must prevent fatal injuries in the workplace.”

“These penalties acknowledge the significant pain and suffering of families and loved ones of workers who have died in preventable workplace incidents.”