In 2011, Safe Work Australia developed model work health and safety (WHS) laws to harmonise the WHS legislation in Australia. However, changing societal attitudes and the impact of an unprecedented global pandemic have subsequently caused the revision of WHS guidelines and requirements. Therefore, as an employer, it is essential to understand your evolving WHS obligations. This article explains some of the current trends in WHS, including:
- industrial manslaughter laws;
- work-related psychological injuries; and
- managing WHS in a COVID-19 environment.
Industrial Manslaughter
Industrial manslaughter is a crime where your act or failure to act leads to the death of a worker. Notably, industrial manslaughter laws aim to prevent workplace deaths and deter you from breaching WHS duties owed to workers.
There is a high bar for an industrial manslaughter offence to apply however the maximum penalties are severe.
In light of the harsh penalties, you should take a proactive approach to safety matters. Ultimately, you want to reduce the risk of workplace injuries and deaths. For example, ensure that you understand and comply with your WHS duties and communicate your WHS policies and procedures to workers.
Industrial Manslaughter Penalties
The table below summarises the industrial manslaughter offences and penalties in Australia. South Australia and Tasmania are not currently planning to introduce specific industrial manslaughter legislation.
| State/Territory | Key elements of the offence | Maximum penalty |
| New South Wales | An employer is grossly negligent or reckless in breaching a health and safety duty owed to a worker. An employer exposes that worker to a risk of death or serious injury or illness. |
|
| Victoria | An employer negligently breaches a health and safety duty owed to a worker and causes their death. |
|
| Queensland | An employer negligently causes a worker's death (or injury and then death) while the worker is carrying out work for the business. |
|
| Australian Capital Territory | An employer negligently or recklessly causes a worker's death (or injury and then death) during their employment. |
|
| Northern Territory | An employer intentionally and recklessly or negligently breaches a health and safety duty owed to a worker and causes their death. |
|
|
Western Australia Note: the WHS legislation in Western Australia is not expected to come into force until early 2022 |
An employer fails to comply with a health and safety duty owed to a worker and causes their death. An employer also knows that their conduct was likely to cause death. |
|
"Health" and Mental Health
The model WHS laws provide that you must protect workers from physical and psychological risks. Notably, work-related psychological injuries have become a big concern for employers. Indeed, this is due to the negative impact on workers and the costs associated with workers being away from work.
Additionally, mental health can be adversely affected by exposure to a range of hazards or factors in the workplace, including:
- high job demands;
- low job demands;
- low job control;
- poor support;
- poor workplace relationships;
- low role clarity;
- poor organisational change management;
- low recognition and reward;
- poor organisational justice;
- poor environmental conditions;
- remote or isolated work; and
- violent or traumatic events.
Exposure to these hazards can lead to work-related stress. Notably, stress itself does not constitute a physical or psychological injury. However, high or prolonged stress can result in work-related psychological injuries. For example, depression and anxiety.
Likewise, Safe Work Australia suggests that the best way to protect workers from psychological risks is by:
- designing work, systems and workplaces to eliminate or minimise risks to psychological health;
- monitoring the health of workers and workplace conditions; and
- consulting with workers.
Managing WHS in a COVID-19 Climate
The COVID-19 pandemic has had an unparalleled impact on businesses and the way people work. Therefore, it is your duty to ensure a safe working environment extends to managing COVID-19 risks.
Public health laws and Safe Work Australia guidance provide for you to manage the risks associated with COVID-19. Note that some of these guidelines are necessary by law. Indeed, you can manage risks by:
- preparing a COVID-19 safety plan to outline how you will minimise the risk of transmission of COVID-19 in the workplace;
- encouraging workers to keep a distance of 1.5 metres from others;
- requiring workers not to attend your workplace when unwell;
- encouraging workers to get a COVID-19 test when they have symptoms;
- encouraging or requiring workers to be vaccinated;
- promoting good hygiene practices such as regular hand washing and use of hand sanitiser;
- ensuring your workplace is regularly cleaned and disinfected;
- ensuring there is adequate ventilation in the workplace;
- encouraging or requiring workers to wear a face mask and personal protective equipment in your workplace;
- requiring workers and visitors to check-in before entering your workplace;
- consulting with workers;
- considering the psychological health and safety risks associated with the COVID-19 pandemic; and
- considering flexible work arrangements such as working from home.
Key Takeaways
You may be liable for an industrial manslaughter offence if you negligently cause the death of a worker in your business. Also, your WHS duties extend to protecting your workers from psychological risks and the risks associated with COVID-19. Therefore, you should plan to manage these risks. Also, keep up to date with any changes to industrial manslaughter laws and public health laws.
