A Senate committee has raised concerns over WA’s proposed industrial manslaughter laws, which could see business owners jailed for up to 10 years if a worker dies on the job even if the owner hasn’t been negligent.

A Standing Committee report on WA’s Work Health and Safety (WHS) Bill, released last week, flagged issues with the proposed legislation, which divides industrial manslaughter offences into two tiers.

Under the first tier, employers face conviction if they engage in conduct knowing that it might cause a fatality, which is in line with the test of manslaughter under the Criminal Code.

Most other states have enacted industrial manslaughter laws using a similar test, but WA has proposed a second tier.

Second tier concerns

This second tier, dubbed a ‘simple offence’, does not require prosecutors to demonstrate that employers acted in a reckless or irresponsible manner.

CCIWA Principal Workplace Relations Advocate Paul Moss explained that this provision places an unfair burden on employers.

“The simple offence doesn’t require businesses to be criminally negligent in order to be found guilty, nor be aware that a fatality or serious injury was likely to occur,” he says.

Moss continues that by stipulating that businesses must have taken every reasonable step to ensure a fatality did not occur, the simple offence could see employers unfairly convicted.

“In hindsight, every time you examine a serious incident there are likely to be reasonable steps that could’ve been taken to prevent an accident from occurring, even though you may not have been aware of it at the time. It sets a very low bar,” he says.

“This means that an employer may be sent to jail for what is a tragic accident through no fault of their own.”

The Standing Committee found that the simple offence element went too far and did not align with recommendations set out in a national review of WHS laws carried out in the 2018 Boland review.

It also agreed that there was a lack of community consultation over the industrial manslaughter component of the WHS Bill.

CCIWA has outlined its rejection of section 30B of the WHS Act, delivering messages from 350 members to Parliament this week stating their concern over the provision.

Parliamentary debate is expected to continue into September.