'A SINGLE WORKPLACE DEATH IS TOO MUCH'

‘When someone tragically dies as the result of a workplace incident, we are determined to ensure their family gets the support they need.’ Sobering words by the Victorian Government to mark the commencement of new criminal offences introduced into occupational health and safety laws from 1 July 2020.

The new workplace manslaughter offences, tabled in Parliament in late 2019 followed a Taskforce Review including members and representatives from business, unions, industry, and victims’ families.

OFFENCES AND PENALTIES

Under the new offences, ‘body corporates’ will face fines of almost $16.5 million and individuals responsible for negligently causing death will be held to account and will face up to 25 years in jail. The offence will also apply when an employer’s negligent conduct causes the death of an innocent person.

The offence applies to negligent conduct by an employer or other duty holders or an officer of an organisation, which breaches certain duties under the Occupational Health and Safety Act 2004 (OHS Act) and causes the death of another person who was owed the duty.

The new law aims to prevent workplace death, provide a stronger deterrent for duty holders to comply with their occupational health and safety obligations, and to send a strong message that putting people's lives at risk in the workplace will not be tolerated.

“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.”

Companies that are already complying with their obligations and duties do not need to do anything different and continue to do the right thing. These introductions are aimed at those who wilfully disregard their known obligations – they are consequences for not thinking about workplace risk and are now much more severe.

A TIMELY REMINDER ABOUT OBLIGATIONS

Whilst the introduction of these offences does not create additional duties, it is a timely reminder for Persons Conducting a Business or Undertaking (PCBU) to review their processes relating to safety and ensure that they are doing what is reasonably practicable to mitigate risk for their workers and include a robust audit trail of documentation and evidence.

If your organisation on-hires workers, logically your obligations also extend to ensuring that you are collaborating with the Host Organisation to ensure that the site is safe, appropriate practices are in place and processes and procedures are documented, understood and followed.

Worksafe Victoria offers excellent and practical resources.

POWER AND RESOURCES

WorkSafe Victoria will be given the power and resources necessary to ensure non-compliant employers can be prosecuted—emphasising the message that putting people’s lives at risk in the workplace will not be tolerated.

WHO CAN BE CHARGED WITH WORKPLACE MANSLAUGHTER

• Organisations and self-employed persons
• Organisations and self-employed persons who hold specified duties under the OHS Act (as outlined below) can be prosecuted for the offence of workplace manslaughter. Organisations include:
• bodies corporate (for example, registered companies)
• incorporated associations
• statutory authorities
• trustee of a trust
• unincorporated bodies and unincorporated associations
• partnerships
• government entities.

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 level of an organisation, who have the power and resources to improve safety, including:

• § 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
• an office holder of an unincorporated association

Employees and volunteers

The offence of workplace manslaughter does not apply to a volunteer or an employee, unless the employee is also an officer of an organisation. However, an employee can still be prosecuted for breaching existing duties under the OHS Act, including the duty to:

• take reasonable care for their own health and safety, and the health and safety of others, in the workplace
• cooperate with their employer regarding actions the employer takes to comply with OHS laws
•  not intentionally or recklessly interfere with or misuse anything provided at the workplace to support health, safety and welfare
• not recklessly engage in conduct that may place another person at a workplace in danger of serious injury.

More detail regarding these duties is available on the WorkSafe website.

NEGLIGENT CONDUCT

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. It also includes a failure to act (an 'omission').

It is worth noting that workplace manslaughter may apply even when the death of the person occurs sometime after the relevant conduct, for example where an employee developed an asbestos-related disease years after an employer negligently exposed them to asbestos.

STATISTICS, PRECEDENT CASES & OFFENCES IN OTHER STATES

As at 18 June 202, there have been 86 Australian workers killed at work. In 2019, 178 Australian workers were fatally injured while working, compared with 144 workers in 2018.

A snapshot of the different States laws and offences is also worth noting:

• Industrial manslaughter is an offence in the Australian Capital Territory and Queensland.
• Victoria, Western Australia and the Northern Territory have each moved to introduce the offence with varying levels of progress.
• Tasmania, South Australia and New South Wales remain the only states not to make any substantial progress. There has also been no announcement by the Commonwealth in relation to any proposed amendments to the Work Health and Safety Act 2011 (Cth).

And finally, nationally, there are already several precedent cases including the fatality at Brisbane Auto Recycling in May 2019 that demonstrate and recognise the intention of these new laws.