This article applies to all organisations in Victoria.
Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 No.50 (Vic)
On 1 July 2020 the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 No.50 (Vic) (the Amending Act) amended the Occupational Health and Safety Act 2004 (Vic) (the Act). In addition, the Crimes Amendment (Manslaughter and Related Offences) Act 2020 No.16 (Vic) made minor consequential amendments to the Act on 1 July 2020.
By way of overview, the Amending Act introduces new workplace manslaughter laws to the Act which are designed to deter persons who owe certain duties under the Act from breaching those duties, and to reflect the severity of conduct that places life at risk in the workplace.
Who do the new workplace manslaughter laws 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 organisation’s business, and people who have the capacity to significantly impact the organisation’s 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:
- is negligent;
- 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 Act; and
- 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.
The new 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.
To reflect the severity of the workplace manslaughter offences, associated penalties are severe. An offence carries a penalty of up to 25 years imprisonment for an individual, or a fine of 100,000 penalty units (approximately $16.5 million) for a body corporate.
In addition, other sanctions under the Act may apply including adverse publicity orders.
Types of offending acts and omissions
Examples of types of offending acts and omissions include:
- where an organisation or officer does not take reasonable action to fix a dangerous situation; and
- (as suggested in the Explanatory Memorandum to the Amending Act) a failure of an organisation 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 to the Amending Act 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.
The severe penalties should ensure that organisations and their officers take the new workplace manslaughter laws seriously. As such, 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 personnel 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.
For further information please contact the Law Compliance team:
Phone: 1300 862 667