In the first industrial manslaughter prosecution in South Australia, SafeWork SA has laid charges against two companies in an Edwardstown manufacturing and fabrication group, and both of their directors under section 30A of the Work Health and Safety Act 2012 (SA) (WHS Act), following the death of a 28 year old worker. [1] A project manager has also been charged with the Category 1 offence of gross negligence or reckless conduct under section 31 of the WHS Act.
As the proceedings are before the courts, the allegations have not been determined. However, what the charges do tell employers, is how SafeWork SA and the Director of Public Prosecutions intend to use the offence and, importantly, who they are prepared to pursue.
What is Alleged
SafeWork SA alleges that:
- on 24 July 2024, a worker at the group’s Edwardstown plant was operating a milling machine when he was struck in the head by a metal object that had been ejected from the machine;
- an interlock guarding switch designed to prevent exactly that from occurring had been disabled and/or bypassed;
- two days before the worker’s death, an external technician engaged by Nylastex Tooling Pty Ltd had advised that there were safety concerns with the guarding switch; and
- the two companies, Nylastex Tooling Pty Ltd and Nylastex Holdings Pty Ltd, and their two directors, had a health and safety duty to their workers, and breached that duty by engaging in conduct with gross negligence that caused the worker’s death, or were reckless as to the risk of death or serious injury.
The Potential Consequences
Industrial manslaughter became a criminal offence in South Australia on 1 July 2024 – just over three weeks before the incident that is the subject of these charges.
Individuals face a maximum penalty of 20 years’ imprisonment, and the maximum fine for a body corporate is $18 million.[2]
Separately, the project manager faces a maximum penalty of $300,000 and/or five years’ imprisonment for the alleged Category 1 offence.[3]
The offence of industrial manslaughter has four elements, all of which must be established. A person commits industrial manslaughter if:
- The person must has a health and safety duty under the WHS Act;
- The person engages in conduct that breaches that duty;
- The conduct causes the death of an individual to whom the duty is owed; and
- The person engages in the conduct with gross negligence, or is reckless as to the risk of death or serious injury or illness. [4]
The offence applies to persons conducting a business or undertaking and to officers of a PCBU. It does not create any new duty, and it does not apply to workers who are not officers.[5]
What does this mean for employers?
- Guarding is a critical control, and defeated guarding is a critical failure – Interlocks, light curtains, fixed guards and emergency stops are engineering controls that sit at the top of the hierarchy precisely because they do not depend on a worker doing the right thing on the day. Where a guard has been bypassed, whether for speed, for maintenance access, or because it had become unreliable, the machine should be out of service until it is fixed. Interfering with a safety control is itself an offence.[6]
- A safety concern that has been raised is a clock that has started running – Most confronting is the two-day gap between the technician’s alleged warning about the guarding switch and the worker’s death. Employers should be able to demonstrate a closed loop for hazard reports and contractor advice: recorded on receipt, assessed, given a named owner and a deadline, and signed off when resolved. Verbal advice from a technician, mechanic or service provider needs to enter that system, just as a written report would.
- Officers are personally exposed – Both directors have been charged personally. An officer’s due diligence obligation is a positive, active duty – acquiring and keeping up-to-date knowledge of work health and safety matters, understanding the hazards and risks of the operation, ensuring appropriate resources and processes are available, and verifying that those resources and processes are actually being used. Verification is where officers most often fall short – receiving a report that guarding is compliant is not the same as testing whether it is.[7]
- Exposure does not stop at the boardroom – The charging of a project manager under the Category 1 provisions is a reminder that managers and supervisors with real influence over how work is performed carry their own exposure. Employers should be satisfied that the people making day-to-day decisions about plant, production pressure and shortcuts understand the limits of their authority, and know that stopping work is always an option available to them.
- Records are the evidence, and they will be read years later – Two years passed between the alleged incident and the laying of charges. Maintenance and service logs, pre-start checklists, plant risk assessments, toolbox meeting minutes, training and competency records, hazard reports and board or management meeting papers are the material through which conduct is reconstructed. Contemporaneous records made properly at the time are worth far more than anything assembled afterwards.
- Have an incident response plan before you need one – The obligations that arise immediately after a serious incident: notification, preserving the site, and dealing with inspectors exercising statutory powers, are time-critical and are usually discharged badly under pressure. A short, tested plan that identifies who notifies SafeWork SA, who secures the scene, who speaks to inspectors, and when legal advice is obtained is a worthwhile investment.
If you would like assistance reviewing your hazard reporting processes, or your officers’ due diligence framework, please contact us. Our general guidance notes are also available on our website here.
Require further information/assistance?
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, including a review of your casual engagement arrangements or assistance responding to an employee choice notification, please contact your Consultant.
[1]SafeWork SA, Charges laid in South Australia’s first case of industrial manslaughter (Media Release, 30 July 2026).
[2]Work Health and Safety Act 2012 (SA) s 30A(1), inserted by the Work Health and Safety (Industrial Manslaughter) Amendment Act 2023 (SA) and commencing 1 July 2024.
[3]Work Health and Safety Act 2012 (SA) 31(1).
[4] Work Health and Safety Act 2012 (SA) s 30A(1).
[5]Work Health and Safety Act 2012 (SA) s 30A(1). An alternative verdict of guilt for a Category 1, 2 or 3 offence is available where industrial manslaughter is not made out.
[6]Work Health and Safety Regulations 2012 (SA) regs 208, 210 (guarding of plant); Work Health and Safety Act 2012 (SA) s 21 (duty not to interfere with anything provided in the interests of health and safety).
[7]Work Health and Safety Act 2012 (SA) s 27.
