The NSW State Government has introduced legislation in the State Parliament called the Work Health and Safety Amendment (Review) Bill 2019 (the Bill). The Government has confirmed that a note will be inserted into the Act that sets out offences and penalties noting workplace deaths may be prosecuted as manslaughter under the existing provisions of the NSW Crimes Act 1900.
It has always been the case in NSW that a work-related death can be prosecuted as manslaughter by criminal negligence and under the Crimes Act. The NSW Minister for Better Regulation and Innovation, Mr Kevin Anderson observed: “The insertion of the note will make it clear to employers, businesses, workers and the community more broadly, that anyone who causes the death of a worker through negligence faces serious criminal sanction.”
While no new offence for industrial manslaughter will be created, the new note in the WHS Act is intended to direct the minds of those that manage WHS to the risk of prosecution to manslaughter. Once the Bill is passed by Parliament, the changes will commence on the Assent of the legislation.
Businesses in NSW need to take stock of risk management strategies and insurance arrangements for WHS fines whilst insurances are called to action to manage the change that a prohibition on insurance of WHS fines brings.
Insurance brokers will also be impacted as businesses challenge the value of management liability and statutory fines insurance if WHS fines cannot be insured.