Workplace manslaughter in Victoria

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Today (1 July 2020), the new industrial manslaughter laws come into effect. You may have heard the words “industrial manslaughter” or “workplace manslaughter” floating around recently. But what exactly does it mean and how can your business prepare for these new laws? 

What is the workplace manslaughter offence?

The Victorian government has amended the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) to provide for a new criminal offence of workplace manslaughter. Workplace manslaughter laws are in place in other Australian states (Queensland and the ACT).

A person will be liable for the workplace manslaughter offence if:

  1. The person is a body corporate or a person who is not an employee or volunteer;
  2. They owed the victim a specified duty under the OHS Act;
  3. They breached the duty owed by negligent conduct;
  4. The breach of the duty caused the death of the victim; and
  5. If the person charged is a natural person they must have acted consciously and voluntarily when breaching the duty owed.

If an individual is found liable, they may receive up to 20 years imprisonment. A company may be fined up to $16.5 million. These penalties are a significant increase from the current penalties for breaches of the OHS duties (up to 5 years imprisonment or $3.3 million fine). 

The workplace manslaughter laws make it a criminal offence to breach a pre-existing OHS duty where that breach causes death. 

Employers owe several duties under the Act. Briefly, these are:

  • Maintain a working environment free of risks to health, as far as reasonably practicable. Crucially, this does not just mean preventing severed limbs in the manufacturing plant, but also identifying and eliminating risks to psychological health such as workplace bullying and vicarious trauma;
  • Report all notifiable incidents to WorkSafe;
  • Monitor employees’ and workplace conditions health (for example, offer an Employee Assistance Program, and have a rigorous complaints management system);
  • Provide employees with information about workplace health and safety;
  • Keep information and records relating to health and safety;
  • Employ or engage people suitably qualified in occupational health and safety to advise you on employees’ health and safety;
  • Consult employees on matters that may directly affect their health, safety and welfare; and
  • Ensure that the conduct of your business does not endanger other people (including visitors, the public and other workers). 

While employers need to take every step possible to prevent workplace injuries and deaths psychological safety must also be preserved. If your organisation breaches its duty to take all reasonable steps to provide a safe place of work by allowing bullying to thrive to a point where it causes risks to safety (for instance, via suicide), then you may be liable for this offence.

Who can be charged with workplace manslaughter?

Organisations or officers of organisations can be charged with the offence. Essentially, any person who routinely makes decisions which affect a substantial part of the business. This includes directors, partners, trustees and senior management but not employees or volunteers, unless the employee is also an officer of the organisation. For example, the CEO or Departmental head could be held liable, whereas an employee in a less senior role would not.

What can you do to prepare for the new laws?

The purpose of the legislation is not only to prevent workplace death, but to also encourage compliance.

In May 2019, the first prison sentence was handed down in Victoria for breaches of the OHS Act. The workplace manslaughter offence will make it easier to impose harsher penalties. It is therefore important that employers take proactive steps to ensure they are compliant with the OHS duties and continue to monitor this.

The new workplace manslaughter offence will strengthen existing consequences and penalties for breaches of pre-existing OHS duties. 

If you’re complying with the legislation now, keep doing so.

Take this opportunity to review your OHS policies and workplace culture to ensure you’re compliant.

Have you:

❏ Reviewed your OHS procedures by reviewing potential hazards within the workplace, including mental health risks;

❏ Checked your employees are receiving up to date and engaging learning and development on appropriate workplace conduct;

❏ Completed a formal review of all your safety systems and controls currently in place and ensured they are fully effective, including a mental health risk assessment and compliance plan;

❏ Ensured that machinery, vehicles, equipment and all workplaces materials are fit for purpose, maintained adequately, handled safely and kept in secure locations;

❏ Ensured your complaints management system captures red flags regarding inappropriate workplace conduct and acts on these;

❏ Reviewed all existing policies related to OHS;

❏ Reviewed your OHS leadership and culture to ensure that any negligent conduct is not permitted by the company;

❏ Educated and brought awareness to the officers of the organisation on the new Industrial Manslaughter legislation and the potential penalties; and

❏ Reviewed your organisation’s Incident Action Plans and responses; and❏Checked the insurance arrangements for your organisation and its officers.