Candid Conversations: Industrial Manslaughter

Candid Conversations: Industrial Manslaughter

A long-awaited legislative update is about to be implemented across Australia. By October 2nd 2025, every Australian state and territory will have adopted Industrial Manslaughter laws.

It’s a weighty topic and its impact on agriculture has been a long-time question since its announcement. To get a better understanding of these laws towards agricultural businesses, we engaged John Love from Mellor Olssen Lawyers to discuss them in our Candid Conversations webinar.

John is acknowledged as one of the top employment lawyers in South Australia. He is well-known for his strategic and practical approach to every angle of employment law. John’s capacity to navigate complex litigation is highly regarded.

Every Australian state and territory has agreed to implement Industrial Manslaughter laws following revisions to the national Model Work Health and Safety Act.

The Model Work Health and Safety Act serves as a national framework and guideline for workplace safety. Recent updates clarified the definitions of key roles such as Worker, Person Conducting a Business or Undertaking (PCBU), and Officers, along with their respective responsibilities within the workplace.

• Worker: To include employees, contractors, sub-contractors, labour hire employees, employees of a contractor and sub-contractor, labour hire employees, outworkers, apprentices, trainees, volunteers and students doing work experience.
  
  Workers must take reasonable care of their own health and safety, ensure their actions don’t affect others, and follow any reasonable instructions from the PCBU to help meet their WHS obligations.
  
  

• PCBU: A Person Conducting Business or Undertaking directs or influences workers to carry out work. This means farm owners, farm lessers, managers, operators and agribusinesses. It’s a broad term designed to capture all modern working arrangements. If you employ staff, seasonal workers or involve family members in operational tasks, you’re a PCBU.
  
  A PCBU’s primary duty of care is to ensure, as far as reasonably practicable, the health and safety of all workers they engage or influence.
  
  

• Officer: A person who makes or participates in making a decision that affects a whole or substantial part of the business. Directors, partners in a partnership, trustees or senior managers or anyone making decisions that affect the safety on farm. For example, a family member who manages the finances or safety systems. It’s about the influence and decision-making power they have. Note: A CEO would be classified as an Officer.
  
  An Officer is responsible for diligently ensuring that the Person Conducting a Business or Undertaking (PCBU) meets their duties and obligations.

What is Industrial Manslaughter?

It’s a criminal offence where a person or company's negligent or reckless conduct causes a worker’s death.

A critical difference is that most workplace laws are civil, however, industrial manslaughter falls under criminal workplace law. If you’re taken to court, it brings with it all the complexity of criminal law and charges.

Unlike other workplace health and safety laws, industrial manslaughter is not subject to the 2 year statute of limitations. Prosecutions can happen anytime, no matter the timeframe.

Who do these laws apply to?

Industrial Manslaughter laws only apply to PCBUs and Officers. Workers and contractors can only face charges for this offence if they hold the designation of Officer.

It applies to all types of farming operations, ranging from small family farms to large corporate enterprises.

In the event of a workplace fatality, you may even face criminal charges for your family members. If they perform tasks like driving a tractor or handling hazardous materials, they are considered workers under the law.

And while it hasn’t been explicitly stated, the same principles apply to children and minors if they’re classified as workers under the law.

How does it impact contractors?

If you are deemed a PCBU, you have a duty of care for whoever is employed or under instruction by you. Including contractors and those hired under them.

If you're engaging contractors and their engaging others, with subcontractors, you still have a level of responsibility towards them.

Contractors also have a responsibility to ensure the safety and well-being of their workers and subcontractors. In this instance, they’re also a PCBU and they’re accountable for their team. But the business that hired them also has its obligations towards them as another PCBU.

Safe Ag System offers a Contractor Directory that can assign safety procedures, policies, and inductions to contractors before they arrive on the farm. You can also store their insurance documents, training and licenses on their profile. This ensures that all necessary safety documentation is collected before the work begins.

What are the elements of the offence?

There are 4 grounds that will be considered when being prosecuted for Industrial Manslaughter.

1. Have a health and safety duty towards others.

2. Engaged in conduct that breaches that duty. Doing an act or omitting to do an act. Overall, they failed to act on their duty of care.

3. Their conduct causes the death of an individual to who that duty was owed. The court will consider whether the conduct substantially contributed to the death.

4. They acted with gross negligence or were reckless.

   • Gross negligence - conduct falls far short of what a reasonable person would do in the circumstances.

   • Reckless - conduct shows a conscious disregard of a substantial and unjustifiable risk.

While there may be some variations from one state to another, the fundamental structure of the elements of offence is generally consistent across jurisdictions.

The primary differences lie in the penalties and charges associated with each category. It's important to keep these distinctions in mind when discussing legal matters. Additionally, you can’t insure against these penalties with your insurance company.

• Guilty of industrial manslaughter

• Category 1 - the person has a health and safety duty and, without reasonable excuse, engages in conduct that shows gross negligence or is reckless to the death, illness, or serious injury to an individual.

• Category 2 - the person has a health and safety duty, they fail to comply and that exposes an individual to risk or death, illness or injury. Exposure to serious risk.

• Category 3 - the person has a health and safety duty, they fail to comply, essentially a technical breach of WHS obligations.

Penalties and prison time differ from state to state.

 

What’s the Investigation Process of Industrial Manslaughter?

In the event of a fatality, you must call 000 and notify your jurisdiction's Work Health and Safety regulator.

Police will handle the initial response, followed by the regulator on-site. On their initial visit, they’ll conduct interviews, take photographs, and assess your processes, compliance history, documentation, and safety systems.

This is a part of their investigation process and can take months. Considering the unexpected nature of the death, a coroner may need to investigate to determine the cause and assess whether it is connected to the workplace.

If the findings are relevant, they will be forwarded to the regulator for consideration of prosecution.

The regulator will reveal the evidence, send it to the state's Crown Solicitor's Office, and they’ll decide whether to lay charges under the WHS Act. If there are grounds to prosecute, they will.

What to do if you’re being investigated?

• Seek legal advice immediately. Be respectful to the regulator and only answer questions with a solicitor present. Remember, anything you say can be used by the prosecution against you.

• Don’t alter or destroy any evidence. You’ll receive harsher consequences if you’re found to have tampered with or acted unlawfully with the evidence.

• Don’t give public statements or post on social media. It will be used against you.

• Be transparent and compassionate to those affected families.

How to Manage Risks on Farm?

You never want a fatality or serious injury to occur in your workplace, so why ignore the risks?

Risk Assessments
Ensure you’re conducting frequent risk assessments and site inspections to identify hazards. For tasks that are recognised as particularly hazardous, make sure to review them more frequently.

Machinery Maintenance
Another frequent check should be your machinery. From scheduled maintenance to pre-start checks to ensure everything is in working order. Be sure to keep records of every service.

Personal Protective Equipment
Every task carries a certain level of risk. Which is why we put in place control measures like PPE to mitigate risks. It’s essential to provide appropriate PPE to your workers and have it easily accessible.

Safety Training
Knowledge should never be assumed. Ensure everyone is up to date with any training, licenses, and tickets. Remember to regularly update and review your safe work procedures and policies. Take a moment to check in with your team and ensure they know where to access these documents.

Treat family members as workers
Just because they’re related to you doesn’t give them immunity in the workplace. Onboard them like any other employee, highlighting how workplace health and safety protects both them and you.

This is only a sneak peek into the discussion we had with John from our Candid Conversations: Industrial Manslaughter webinar. Given the complexity of the subject, we encourage you to dive into the full discussion below!