The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) inserts a criminal offence of workplace manslaughter into the new Pt 5A of the Occupational Health and Safety Act 2004 (Vic) (Act). This took effect on 1 July 2020.
Under these new laws, a person or employer who or which negligently causes a workplace death faces a fine of up to $16.5 million, in addition to up to 20 years jail for individuals.
The offence occurs where a person (e.g. an employer) is negligent and breaches an applicable duty, being the duties relating to health and safety imposed by Part 3 of the Act, or an officer of an entity is negligent and breaches an applicable duty of the entity. Such a breach would usually involve failing to ensure workplace safety so far as is reasonably practicable. If so, and the breach of duty causes the death of another person (including a member of the public), the person/employer is guilty of industrial manslaughter.
The Act describes negligent conduct as involving 'a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in' and a high risk of death, serious injury or serious illness.
The offence applies to employers, self-employed people and 'officers' of the employers. 'Officer' is defined as individuals within an organisation that have the ability and resourcing to improve safety, namely, directors, any person that participates in the decision-making affecting a substantial part of the organisation or any person that has the capacity to significantly affect the organisation's financial standing.
Victoria's new penalties are now the highest under Australian workplace safety legislation, exceeding the maximum penalties for industrial manslaughter offences found in in Queensland, the ACT and the NT.
Exactly how Victorian Courts will apply the new laws remains to be seen. However, guidance is likely to be taken from Queensland, where industrial manslaughter already exists as an offence. Under those news, in June 2020, Brisbane Auto Recycling Pty Ltd was convicted and fined $3M under Queensland industrial manslaughter laws, while its two directors and shareholders were convicted and given 10 month suspended custodial sentences (with good behaviour provisions of 20 months) for reckless conduct in breach of the Queensland Work Health and Safety Act.
In that decision, the industrial manslaughter provisions were applied because the Court found the corporate defendant was negligent, as 'the defendants knew of the potential consequences of the risk, which were catastrophic. Steps to lessen, minimise or remove the risk posed ... were neither complex nor overly burdensome.' However, these steps were not taken.
This shows the approach a Victorian Court might take, but the actual application obviously remains to be seen. It is unlikely a Court would convict an employer of industrial manslaughter if an employee's actions leading to their death were reckless or unpredictable. However, employers need to guard against the possibility that employees may be careless or inadvertent. Employers which are negligent in failing to ensure workplace safety, resulting in a death, may commit the offence of industrial manslaughter even if an employee was careless or inadvertent.
The new laws serve as a timely reminder for employers to ensure all workplace safety standards are met and that there is a strong culture of safety compliance within the workplace. Employers should identify and manage risks and document all steps taken. Directors and officers must ensure they lead and drive a safety culture and spread this amongst their workforce. Taking these steps will put employers, directors, officers and employees in a better position to defend a prosecution (and ideally, prevent workplace accidents occurring in the first place).
*with thanks to John Florio
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
