Workplace manslaughter (criminal offence)

Workplace manslaughter is a criminal offence under several Australian jurisdictions’ WHS / OHS legislation, applying where negligent conduct in breach of a WHS or OHS duty causes the death of a person. The Victorian offence, under OHS Act 2004 (Vic) Section 39G, commenced 1 July 2020. Queensland introduced industrial manslaughter under the WHS Act 2011 (Qld) Part 2A. The ACT and NSW have similar offences (NSW from 2024). Penalties are substantial: up to 25 years imprisonment for individuals and $16.5M for body corporates in Victoria. The offence does NOT create new WHS duties; it attaches tougher criminal penalties to existing PCBU duties (and equivalent employer duties).

Why it matters for builders:

Workplace manslaughter shifts WHS prosecution from regulatory fines (under WHS Act Categories 1-3) to criminal manslaughter charges when negligence causes death. A director or officer of a corporation can be charged in their personal capacity and face imprisonment, not just the company.

The Victorian framework (OHS Act 2004 s39G, from 1 July 2020):

Element	Threshold
The duty owed	Existing s21, s23 OHS Act employer duties
The breach	Negligent conduct in breach of the duty
The result	Death of a person to whom the duty was owed
The penalty	Individual: up to 25 years imprisonment + fines. Body corporate: up to ~$16.5M (10,000+ penalty units, indexed annually)

The Queensland framework (WHS Act 2011 (Qld) Part 2A, from 2017):

Industrial manslaughter targets PCBUs and senior officers. Similar elements: negligence in breach of a duty causing death. Penalty: up to 20 years imprisonment for individuals, large fines for body corporates.

The NSW framework (from 2024):

NSW introduced industrial manslaughter as part of WHS Act 2011 amendments. Similar penalty structure to Vic and Qld.

The ACT framework:

ACT introduced workplace manslaughter under WHS Act 2011 Section 34A.

Why builders need to know:

Director / officer personal liability: incorporated builders are not insulated. A director who is negligent in supervision can face personal imprisonment.
Insurance does NOT cover the criminal penalty: company indemnity insurance covers civil and regulatory penalties but typically does NOT extend to fines for a criminal manslaughter conviction.
The standard of “negligence” is high but not unreachable: gross failure to manage a serious hazard, knowing the risk and failing to act, is the typical triggering pattern.
Reputational impact: even an investigation (let alone a conviction) for workplace manslaughter is career-ending.

Typical scenarios leading to workplace manslaughter prosecution:

Crush injury during demolition / earthworks: no spotter, no exclusion zone, plant kills worker.
Fall from height fatality: no edge protection, no fall arrest, worker falls from roof.
Trench collapse fatality: no shoring, no benching, worker buried.
Asphyxiation in confined space: no ventilation test, no permit, no rescue plan.
Electrocution: live work without isolation, no LOTO procedure.

Prosecution standard:

The prosecution must show:

The defendant owed a duty (PCBU or officer).
The defendant’s conduct was negligent (gross departure from what a reasonable person would do).
The breach caused the death.

The “gross negligence” standard is higher than civil negligence; merely failing to prevent something doesn’t constitute manslaughter. But “we didn’t have a SWMS, we never inducted the worker, we let them work on a 4 m roof without harness” can satisfy the test.

For builders:

Treat WHS hazard management as a personal risk, not just a corporate cost. Negligence prosecutions reach directors.
Document everything: induction, SWMS review, hazard reports, near-miss reports. Documentation is the difference between “couldn’t have done more” and “should have done more”.
Don’t compromise on HRCW controls: fall arrest, exclusion zones, isolation procedures, permits. Cutting these is the path to negligence.
Engage a WHS adviser if you’re managing complex sites. The cost of professional advice is trivial compared to the cost of prosecution.
Brief subbies on the contractual chain duty: their workers’ safety is also your responsibility. Don’t assume the subbie has it covered.

Note: this article is general information, not legal advice. If you’re facing a WHS or workplace manslaughter inquiry, engage a specialist WHS lawyer immediately.

Also known as: industrial manslaughter, workplace manslaughter offence, negligent manslaughter at work.

Category: WHS / criminal law / officer liability.

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