On Tuesday November 26, 2019 Victoria became the third Australian jurisdiction to enshrine the offence of industrial manslaughter in law, with an Amendment Bill (and the country's highest work health and safety fine) passing Parliament without any changes.
The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 [pdf], commenced 1 July 2020.
It introduces maximum fines of 100,000 penalty units (which at the moment means $16,522,000) for bodies corporate, and jail terms of up to 20 years for company officers, who negligently cause the death of a worker or member of the public.
The Andrews Labor Government Bill was introduced into the Lower House on 29 October, and it was subsequently revealed that the new laws could capture practices that "fail to create a culture of compliance", actions that cause a mental illness that leads to death, and negligent conduct or fatalities that occur in other jurisdictions. The Government also announced a $10 million package to increase WorkSafe Victoria's ability to investigate and prosecute workplace manslaughter offences, and plans to crack down on employers that attempt to cover up safety failings after a fatality.
The laws passed the Legislative Council at almost midnight with the support of MLCs Rodney Barton (Transport Matters Party), Jeff Bourman (Shooters, Fishers and Farmers Party), Dr Catherine Cumming (Independent), Clifford Hayes (Sustainable Australia), Andy Meddick (Animal Justice Party), Fiona Patten (Fiona Patten's Reason Party) and Dr Samantha Ratnam (Victorian Greens). We thank these cross-benchers for listening to the families of workers killed at work and union member who met with them to discuss the importance of these laws.
Minister for Workplace Safety Jill Hennessy said, “We promised we’d make workplace manslaughter a criminal offence and that’s exactly what we’ve done – because there is nothing more important than every worker coming home safe every day.”
Summary
The Act introduces a new criminal offence of workplace manslaughter into the Occupational Health and Safety Act 2004 by introducing a new Part 5A.
The offence applies to negligent conduct by an employer or other duty holders as outlined below, or an officer of an organisation, which breaches certain duties under the OHS Act and causes the death of another person who was owed the duty.
The changes do not create additional duties; they introduce tougher penalties on already existing duties under the OHS Act. Just as the law currently provides, employers and duty-holders should stop to think about the risks involved in the conduct of their business, and what steps can be taken to mitigate those risks.
Elements of the offence of workplace manslaughter
The elements of the new workplace manslaughter offence are:
- the person charged must be a body corporate or a person who is not an employee or volunteer
- they must have owed the victim a specified duty under the OHS Act
- they breached the duty owed by negligent conduct
- the breach of the duty caused the death of the victim, and
- if the person charged is a natural person they must have acted consciously and voluntarily when breaching the duty owed.
Who can be charged with workplace manslaughter?
- Organisations and self-employed persons who hold specified duties under the OHS Act. These include:
- bodies corporate (for example, registered companies);
- incorporated associations;
- statutory authorities;
- trustee of a trust;
- unincorporated bodies and unincorporated associations;
- partnerships; and
- government entities.
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Officers of body corporates, partnerships, and unincorporated bodies or associations may also be charged with the offence of workplace manslaughter if their organisation holds specified duties under the OHS Act. Officers are individuals at the highest levels of the organisation. These include:
- a director or secretary of a corporation;
- a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business; or who has the capacity to affect significantly the entity’s financial standing; or in accordance with whose instructions or wishes the directors of a corporation are accustomed to act;
- a partner in a partnership;
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an office holder of an unincorporated association
Employees and volunteers cannot be charged with workplace manslaughter.
Relevant duties and duty holders
The workplace manslaughter offence applies where there is a breach of specified existing duties under the OHS Act. The laws do not create any new duties under the OHS Act.
- the duty of employers to provide and maintain a working environment for employees that is safe and without risks to health. Note: 'employees' includes contractors and employees of contractors.
- the duty of employers to monitor the health of employees and working conditions
- the duty of employers to ensure persons other than employees are not endangered by the conduct of the business (including visitors, the public and other workers).
- the duty of self-employed persons to ensure persons are not exposed to OHS risks from their undertaking
- the duty of persons with the management or control of a workplace to ensure that the workplace and the means of entering and leaving it are safe
- the duty of designers to ensure plant, and buildings and structures that are used as workplaces, are safely designed
- the duty of manufacturers and suppliers to ensure plant or substances are safely manufactured and safe to use
- the duty of a person not to recklessly engage in conduct that may place another person at a workplace in danger of serious injury.
All of the above are limited by 'so far as is reasonably practicable'.
What is 'negligent conduct'
For the purposes of workplace manslaughter, conduct will be considered 'negligent' if it involves:
- a great falling short of the standard of care that a reasonable person would have taken in the circumstances, and
- a high risk of death, serious injury or serious illness.
Negligent conduct also includes a failure to act (an 'omission'), for example it may include when a person:
- does not adequately manage, control or supervise its employees, or
- does not take reasonable action to fix a dangerous situation, where failing to do so causes a high risk of death, serious injury or serious illness.
The test is based on the existing common law test for criminal negligence in Victoria, and is an appropriately high standard considering the significant penalties for the new offence.
Penalties
If convicted of workplace manslaughter, the following penalties apply (as at 1 July 2020):
- a maximum of 25 years imprisonment for individuals; and
- a maximum fine of $16.5 million for body corporates.
Investigation and legal process
As with other alleged breaches of the OHS Act, WorkSafe will lead investigations into potential workplace manslaughter offences. Following a workplace fatality, and consistent with existing arrangements, WorkSafe and Victoria Police will work together to ensure all evidence is preserved and the worksite is safe and without risks to the health of persons present or likely to attend the site.
In line with current arrangements, WorkSafe will have carriage of a workplace manslaughter matter until the accused has been committed to stand trial. The Office of Public Prosecutions will then take the matter to trial. Workplace manslaughter is an indictable offence with no statutory limitation period. It cannot be heard and determined summarily (in the Magistrates' Court of Victoria).
Unions or other parties are not able to prosecute.
WorkSafe Victoria ran a webinar discussion just prior to the effective date of the new provisions. You can check it out here. Read the media release of Jill Hennessey, Minister for Workplace Safety. The updated copy of the OHS Act, complete with Section 5A, can be downloaded here
Last amended July 2020