Criminalising workplace manslaughter and wage theft

In separate moves that further criminalise conduct in the workplace, the state government has introduced industrial manslaughter as a criminal offence into South Australian safety law while the federal government has made wage theft a criminal offence under the Fair Work laws.

Work health and safety (industrial manslaughter) amendment

Locally, the Malinauskas state government’s introduction of industrial manslaughter is the most significant change to South Australia’s Work Health and Safety laws since its inception in 2010.

In introducing the Bill that contained the proposed industrial manslaughter amendment to parliament, the Minister for Industrial Relations, Kyam Maher, made clear the intent of the state government:

“While tragic workplace incidents do occur from time to time, our industrial manslaughter laws recognise it is not an accident when people deliberately cut corners and place workers’ lives at risk.

“It is a crime and it will be treated like one.”

The amendment to South Australia’s work health and safety laws introduces more severe penalties for persons controlling a business or undertaking (PCBU) or an officer of the PCBU who commits the new offence of industrial manslaughter.

A PCBU, or officer of a PCBU, commits the new offence where their breach of a safety duty that causes death arises from conduct that is either “gross negligence” or “reckless”.

“Gross negligence” is defined under the amendment as conduct that involves:

• such a great failing short of the standard of care that a reasonable person would exercise in the circumstances; and
• such a high risk of causing death or serious injury or illness of an individual, that the conduct merits criminal punishment for the offence.
   

The term “reckless” is defined by reference to a PCBU’s¹ conduct, which involves their knowledge of the risk to an individual of death or serious injury being ‘substantial’ and ‘unjustifiable’ in the circumstances.

A new penalty regime under which PCBUs will face fines of up to $18 million, whilst individuals face a maximum prison sentence of 20 years, applies to the new offence of industrial manslaughter.

South Australia, introducing industrial manslaughter, joins a growing list of states and territories that have moved to criminalise industrial manslaughter, which now includes Western Australia, the Northern Territory, the Australian Capital Territory, Queensland and Victoria.

At this stage, the expected start date for the industrial manslaughter amendment to South Australia’s Work Health and Safety laws is 1 July 2024.

Fair Work Closing the Loopholes amendment

At the national level, the Albanese government has successfully passed aspects of the Closing the Loopholes amendments to the Fair Work laws with the support of the Greens and crossbench.

One key change was the introduction of wage theft as a criminal offence.

Wage theft has been on the national agenda for some time.

Pre-COVID, pressure mounted to introduce wage theft when the punishment for celebrity chef George Calombaris’s business empire for underpaying nearly $8 million was revealed by the Fair Work Ombudsman (FWO).

The punishment, contained in an enforceable undertaking reached between Calombaris’s business empire and the FWO, included a fine of $200,000 and Calombaris’s agreement to do speaking engagements. In the context of the systematic underpayment of workers, this punishment was considered “light”.

In response, the then-Morrison government sought to introduce wage theft into the Fair Work laws. However, despite general support for the move, this proposed amendment did not pass parliament.

Some states, though not South Australia, did introduce wage theft as a criminal offence.

The new federal wage theft provision will make it an offence for an employer to engage in deliberate conduct that results in an employee not being paid their correct entitlements under the safety net as contained in the National Employment Standards or a workplace instrument such as a Modern Award.

A new penalty regime under which employers face significantly increased penalties and directors prison sentences shall apply for contraventions of the new wage theft provisions.

At this stage, the expected start date for the wage theft amendment to the Federal Fair Work Act is 1 January 2025.

Employers should consider a review of their arrangements with their workforce to ensure that they are workplace compliant, including that they comply with the National Employment Standards and applicable Modern Awards (or Enterprise Agreements) in response to this development.

For employers who are unsure as to whether they are workplace compliant, advice should be sought as soon as practicable.

^{1. Or an officer of a PCBU.}

This article was republished with the permission of DW Fox Tucker Lawyers. View the original here.

Image credit: iStock.com/lersan8910

Originally published here.