New Victorian Workplace Manslaughter Laws

Special Notification – June 2020

The Victoria Government has been the 3rd State in Australia to enact workplace manslaughter laws which came into effect on 1 July 2020.  The purpose of the new laws are to prevent workplace deaths, to deter persons who owe certain duties under the Occupational Health and Safety Act 2004 (Vic) (the OH&S Act) from breaching those duties and to reflect the severity of conduct that places life at risk in the workplace.

This article discusses the new workplace manslaughter laws and provides some practical tips on what actions organisations should be taking.

Legislative basis

The new workplace manslaughter laws are to be enacted through amendments to the OH&S Act.

Who does the offence apply to?

The new workplace manslaughter laws apply to a person, a body corporate, an unincorporated body or association or a partnership, including government entities and officers of these entities (but not employees or volunteers), who owe applicable duties to ensure the health and safety of another person in the workplace. Employees who are not officers have been excluded as they are seen as not having a sufficient level of power or resources to improve safety standards. However, this does not exclude action being taken against employees for criminal negligence under the common law or under other criminal or OH&S laws.

“Officer” in this context has the same meaning as in the Corporations Act 2001 (Cth), and includes directors, people who participate in making decisions that affect a substantial part of the organisations business, and people who have the capacity to significantly impact the organisations financial standing. Also covered are partners of a partnership or joint venture and a trustee of a trust.

What are the elements of the offence?

The offence is made out if an organisation or an officer of the organisation engages in conduct that:

  1. is negligent;
  2. breaches an applicable duty owed by the organisation or officer to another person under sections 21 to 24 or sections 26 to 31 of the OH&S Act; and
  3. causes the death of that person.

Conduct will be deemed to be negligent for the purposes of the offence if it involves 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 involves a high risk of death, serious injury or illness.
For the acts or omissions to have caused the death, they must have contributed significantly to the death, or been a substantial and operative cause of it. The existing common law test of causation applies so that the acts or omissions must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death.

An omission to perform an act on or after the commencement of the amendments to the OH&S Act can be offending conduct regardless of whether an occasion for performing that act arose before the commencement. Further, the offences are intended to capture both conduct that occurs outside Victoria but results in a workplace fatality in Victoria, and conduct that occurs inside Victoria but results in a workplace fatality outside Victoria. Unlike the recent Queensland workplace manslaughter laws, the Victorian workplace manslaughter laws apply not only to the deaths of an employee but also to the death of a member of the public.

Penalties

To reflect the severity of the workplace manslaughter offences, associated penalties are severe. An offence carries a penalty of up to 20 years imprisonment for an individual, or a fine of up to $16.5 million for a body corporate or $1.65 million for an individual. In addition, other sanctions under the OH&S Act may apply including adverse publicity orders.

Types of offending acts and omissions

Examples of types of offending acts and omissions include:

  • where an organization or officer does not take reasonable action to fix a dangerous situation; and
  • (as suggested in the Explanatory Memorandum) a failure of an organization or officer to adequately manage, control or supervise its employees which causes a high risk of death, serious injury or serious illness.

The Explanatory Memorandum suggests the factors a court may consider in determining whether an individual officer was negligent for the purposes of the offence include what the officer knew about the matter concerned, the extent of the officer’s ability to make, or participate in the making of, decisions that affect the body corporate in relation to the matter concerned and whether the contravention by the body corporate is also attributable to an act or omission of any other person.

Immunity to Board Members

In respect of these offences, the Health Services Act 1988 (Vic) provides an immunity to personal liability of Board members of a public hospital, health service and multi-purpose service for anything done or omitted to be done in good faith in the exercise of a power or the discharge of a duty under the Health Services Act (for example, following a direction of the Secretary to the DHHS), but this does not apply to the health service itself or other ‘officers’ of the health service.

What action should be taken?

Organisations should take the opportunity to review their health and safety practices to ensure that:

  • Policies and procedures are in place to manage health and safety including induction, training and supervision of all new employees, volunteers, contractors and students to follow safe systems of work, reporting and investigation of incidents, safety incident response plans and emergency management consistent with legislation and associated regulations and codes of practice
  • Processes are in place to measure compliance with policies and procedures
  • Potential health and safety risks are identified including review of any ‘unwritten’ policies and ensuring that processes are in place to deal or minimize the impact of identified risks
  • There is a strong safety culture amongst the organisation’s individuals – this includes appointment of appropriate personal to various roles to manage health and safety
  • There are adequate training and education programs particularly directed at directors, senior officers and managers including on the new workplace manslaughter laws
  • HR policies are in place around workplace bullying and harassment as any mental injury sustained by an employee which leads to suicide that is shown to be the direct result of negligent workplace practices and policies could fall within the scope of the new laws.

Conclusion

The risk of a 20 year imprisonment term and fines of $1.65 million for individuals and $16.5 million for corporations should ensure that organisations and their officers take the new workplace manslaughter laws seriously.

If you have any questions arising out of this article, please contact Sarah Caraher on (03) 9865 1334, or email sarah.caraher@healthlegal.com.au.

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