As indicated in a previous newsletter, Tasmania has now followed the other states and have provisions in the Work Health and Safety Act to create the offence of industrial manslaughter.

Under the legislation, a person will commit an offence if:

• the person engages in negligent conduct that causes, in that it substantially contributes to, the death of an individual that is a worker at the workplace; and

• the person:

• is a 'responsible person' in respect of the workplace; or

• has a health and safety duty in respect of either the workplace or the worker.

It will not apply to volunteers in the workplace.

A responsible person that could be brought before the Court is:

• a person conducting a business or undertaking (PCBU), including, for example, employers, sole traders, businesses, corporations, State and Local governments;

• a person with management of control of a workplace;

• a person with duties involving management or control of fixtures, fittings or plant at workplaces, designers, manufacturers or suppliers of plant, and persons that install, construct or commission structures;

• an officer of a PCBU; or

• a person of a prescribed class under the WHS Regulations.

However, the legislation does provide for two specific defences that a person or business can rely upon:

• first, if the accused can prove that they complied with all the health and safety duties owed in respect of the workplace and the worker; and

• second, if the worker who dies was not lawfully present at the workplace, the accused was reasonably unaware of their presence, and had the accused known this, then they would not have engaged in conduct that led to the worker's death.

The legislation imposes a maximum penalty of 21 years’ imprisonment for an individual, or up to $18 million in fines for a body corporate.

If a matter goes to court the conduct causing the death of a worker will be tested against whether the conduct meets the test of criminal negligence. This means that the accused has not shown the appropriate standard of care that a reasonable person would have taken in the circumstances. It would also look to see if there was such a risk that 'death, serious injury, or serious illness' would follow.

It is essential that all employers constantly assess the risks in their workplaces and put in place the necessary steps to minimise the risk and avoid injury or worse to their employees and others in the workplace.