Dependants of workers who have been killed during the course of their employment are entitled to make a death benefits claim under the Workers Compensation Act 1987. The claim can comprise of a lump sum payment, weekly payments for each dependent child and reasonable funeral expenses.
However, compensation alone often fails to suffice in holding responsible employers accountable for workplace deaths. For this reason, a separate legislative framework under the Work Health and Safety Act 2011 allows persons conducting a business or undertaking (‘PCBU’s’) to be fined or imprisoned, where they have caused the death of a worker through gross negligence.
Section 31 of the Act provides for a Category 1 offence, which is invoked when a PCBU engages in reckless conduct, without reasonable excuse, that exposes an individual to whom the duty is owed, to a risk of death or serious injury or illness. Commission of the offence attracts a maximum penalty of $3 million for corporations, $600,000 or five years imprisonment for PCBU who are individuals and $300,000 or five years imprisonment for other individuals.
Where there has been a failure to comply with a health and safety duty, with no recklessness element, the prosecution falls within the ambit of a Category 2 offence pursuant to section 32. The maximum penalty for a Category 2 offence is $1.5 million for corporations, $300,000 for individuals conducting a PCBU and $150,000 for other individuals. In the alternative, a PCBU can be prosecuted for negligent manslaughter under the Crimes Act 1900 (NSW), including the common law.
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This article is intended to be for information and educational purposes only and cannot be relied upon as legal advice. The information may not apply to your circumstances or to your particular situation. If you need specific advice or you have any questions, we welcome you to contact us directly.
