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From the 1st of July 2024, new industrial manslaughter laws come into effect in NSW, the 6th state and territory to do so since 2017.
With potential penalties for body corporates of up to $20M and individuals potentially up for 25 years in jail, the new laws send a clear message that those who place workers lives at risk will be held to account.
This article is commentary only and is not advice. Always consult a qualified professional for advice on compliance.
Under the Crimes Act 1900 (NSW) manslaughter carries a maximum penalty of 25 years imprisonment. In a workplace context, charges of manslaughter usually relate to circumstances where a failure to meet a duty of care results in death or grievous bodily harm.
In 1983, NSW implemented an occupational health and safety law aiming with broad duties for employers, to ensure the health and safety of employees. This Act was replaced in 2000 by the Occupational Health and Safety Act 2000 (NSW), and later superseded by the Work Health and Safety Act (2011).
Following the 2018 Boland review of model work health and safety laws, most states and territories introduced industrial manslaughter offences into work health and safety laws.
Since the introduction of the Work Health and Safety Act (2011), workplace injuries and fatalities have, encouragingly, declined. However, dozens of workplace deaths still happen every year.
Data from 2022 showed the rate of workplace deaths in NSW was 1.2 deaths per 100,000 workers with 51 workplace deaths recorded. Since 2019, this number is in excess of 300 deaths in NSW, leaving countless lives impacted from friends and family members who didn’t get to come home from work.
Prior to the introduction of industrial manslaughter laws, workplace deaths in NSW were prosecuted under offences in the Work Health and Safety Act (2011).
This made it difficult for prosecutors to act against corporations, as it required evidence of criminal negligence of a particular individual, identified as the directing mind and will of the company. An exceptionally difficult task in the case of large businesses, with multiple layers of responsibility.
The creation of industrial manslaughter offenses is an amendment to the Work Health and Safety Act (2011). Under the new section of the act, a person can be found to have committed an offence if they:
a) Have a health and safety duty
b) Is a person, or an officer of a person, conducting a business or undertaking, and
c) Engages in certain conduct that causes the death of a worker or another individual to whom the person’s health and safety duty is owed, and
d) Engages in the conduct with gross negligence
The new laws enable prosecutors to hold businesses or individuals criminally accountable where gross negligence has resulted in a workplace death.
Aligning with manslaughter charges under the Crimes Act, this brings the maximum penalty for individuals up to 25 years jail. For body corporates, the penalty is in the form of a fine of up to $20,000,000.
In addition to the introduction of industrial manslaughter, penalties for Category One offences in the Work Health and Safety Act (2011) are drastically increasing. For individuals, an offence could carry a maximum penalty of 5 years, which has now been increased to 10 years.
For body corporates found to have committed an offence, the maximum penalty has increased from a $4M fine, to a $10.4M fine.
All organisations have an obligation to protect the health and safety of employees and contractors, and accountability generally sits with more senior management. As the frontline defence against workplace incidents, it’s imperative that facilities teams pay close attention to compliance requirements.
For organisations whose leaders are already paying attention to workplace health and safety legislation, this new legislation is unlikely to have much of an impact. However, organisations with an “it’ll be right” attitude and outdated processes could find themselves exposed.
Below, we’ve briefly touched on some of the areas we believe will become a focus for facilities management teams.
The below is not intended as legal advice for compliance, always do your due diligence to determine the compliance requirements for your organisation.
Ensuring those systems that play a key role in the safety of facility users are maintained appropriately is an important part of keeping facility users safe. These systems require inspection, or routine maintenance and having auditable records of the completion of these activities is key to retaining occupancy permits.
In many organisations, this maintenance is outsourced to external contractors. While this in itself isn’t a problem, a lack of visibility over that work may be.
It is the responsibility of the organisation to ensure contractors are meeting agreed upon standards for this important work. Relying on calendar reminders, or just assuming the contractor is doing the required work, on the required schedule, simply doesn’t cut it for compliance.
Facilities will increasingly need to ensure they have complete visibility over contracted services. Dedicated facilities management software, which can help teams to reduce errors in planned maintenance and improve visibility over works will be key to staying, and proving, compliance.
Every time a contractor sets foot within a facility, licences, accreditations and insurances need to be checked. In too many organisations, this compliance-critical step is neglected where there is an established relationship with the contractor.
Ensuring work is done by someone appropriately qualified to do so is a key compliance requirement under the Work Health and Safety Act (2011). While successful prosecutions have been rare, one of the four successful prosecutions since 2018 related to work done by an unqualified contractor.
Accreditation checks can be done manually, however, to ensure they happen every time, and reduce the scope for human error, many teams now rely on facilities management software solutions to automate checks. This helps to support comprehensive record-keeping and ensures that these essential checks happen every single time a contractor is engaged.
Assets are more likely to fail when they are not properly maintained, and these failures can have terrible consequences in certain cases. Being able to prove that assets have been appropriately maintained, and not used when knowingly impaired will increasingly become a focus for organisations.
For facilities teams relying on outdated, manual processes, this can create a lot of additional work. Making those records easily accessible presents another challenge, particularly if asset and maintenance histories are recorded on paper, or in disparate spreadsheets.
Dedicated facilities management platforms help teams to maintain comprehensive records, while reducing the workload. When record keeping is ingrained in the work order management process, teams can improve compliance, without adding additional work.
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