With workplace fatalities on the rise, it is more important than ever for employers to be aware of industrial manslaughter laws, which have now been enacted in all Australian jurisdictions.
What is industrial manslaughter?
Industrial manslaughter is a criminal offence where a person conducting a business or undertaking (PCBU) has recklessly or negligently failed to ensure the safety of workers or others impacted by their business or undertaking, resulting in a fatality.
Although the legal test differs across jurisdictions, essentially an individual or PCBU commits industrial manslaughter if the PCBU or person:
1. has a work health and safety (WHS) duty under the safety law;
2. engages in conduct that breaches a duty they owe under the WHS laws and that conduct causes the death of an individual; and
3. engages in conduct in circumstances knowing it is likely to cause the death or serious harm to an individual, or in disregard of that likelihood.
Industrial manslaughter offences across Australia
The image sets out the industrial manslaughter offences across Australia and when each state and territory introduced the offence.
These offences carry serious consequences and should not be taken lightly by company directors or construction businesses as they carry significant maximum penalties, including imprisonment.
As at May 2025:
The Victorian Court of Appeal recently ordered that LH Holding Management Pty Ltd pay a fine of $3 million for breaching Victoria’s industrial manslaughter offence.
Background
LH Holding is a stonemasonry business, solely owned and managed by Mr Hanna. The company regularly engaged subcontractors, including a family-run business, ‘All Emporium Stone’, owned by Steve Tsahrelias and his son Michael Tsahrelias.
On 12 October 2021, Michael was killed when a forklift operated by Mr Hanna tipped, pinning him to the ground.
At the time of the incident, Mr Hanna was using the forklift to move an empty A-frame used to store stone slabs in LH Holding’s factory. Michael was on the ground, helping to steady the heavy load. Despite warning Michael to move, Mr Hanna manoeuvred the forklift sideways on the slope with the load suspended high above the ground – contrary to basic safe operating procedures.
It was found that this caused the forklift to overbalance and tip sideways down the slope, striking Michael and pinning him underneath the forklift mast as it skidded down. Within one minute, another worker on site used a second forklift to lift the mast off Michael and CPR was attempted. However, Michael could not be resuscitated and died at the scene.
LH Holding pleaded guilty before a judge in the Supreme Court to workplace manslaughter.
Initial decision
In the first instance, the Supreme Court ordered a $1.3 million fine on LH Holding. In reaching this decision, the Court considered and weighed several factors, including:
• the fatality was caused by LH Holding’s negligence and the operation of the forklift across a slope with a high swinging load was contrary to basic safety rules
• Mr Hanna believed that Michael had moved away before he began to reverse the forklift
• the negligence occurred for a matter of seconds
• it would be very unlikely that Mr Hanna, LH Holding, or any future business he might establish, would ever be involved in a similar incident
• LH Holding continued to trade and had assets of between $300,000 and $400,000.
Mr Hanna was convicted and placed on a two-year Community Correction Order, with additional conditions that he complete 200 hours of unpaid community work and complete a course in forklift operation.
The Department of Public Prosecutions (DPP) appealed the decision, arguing that the sentences ordered were manifestly inadequate.
Appeal decision
The Court of Appeal allowed the DPP’s appeal and increased the fine imposed on LH Holding to $3 million, finding that the initial sentence was grossly inadequate.
In reaching this decision, the Court of Appeal considered and weighed several factors, including:
• the offending was not in the worst category
• the incident was a single act of unsafe conduct, rather than the result of ongoing, tolerated unsafe work practices
• Mr Hanna had, only a few months before the incident, completed a course on the safe operation of forklifts
• despite his recent training, Mr Hanna’s operation of the forklift involved a very significant departure from acceptable safety standards
• Mr Hanna was aware that Michael was near the forklift at the time
• the court is not prevented from ordering a fine that the offender is unable to pay. More importantly, an offender’s financial capacity cannot be a reason for a penalty that fails to reflect the objective seriousness of the offence or the need for general deterrence
• the imposition of a fine greater than $1.3 million will be “ruinous for the company” and will “very likely remain unpaid”.
Although this is a Victorian case, the sentencing principles applied will likely be instructive to other jurisdictions.
Takeaways
This case serves as a stark warning to construction companies and their officers. Failing to comply with WHS duties by not taking reasonably practicable measures to protect the health and safety of their workers can lead to severe consequences. These may include substantial fines – potentially enough to bankrupt the company – and imprisonment for a serious offence.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.