New Industrial Manslaughter Laws to come into effect in Victoria

by  Renee Karakinos, Lawyer and Chao Ni, Principal, MST Lawyers

The Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 (workplace manslaughter laws) received royal assent on 3 December 2019 to amend the Occupational Health and Safety Act 2004 (OHS Act) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The new workplace manslaughter laws will commence on a day to be proclaimed or 1 July 2020 at the latest, applying to organisations (including bodies corporate, partnerships, unincorporated bodies and unincorporated associations) and self-employed persons. Occurrence of negligent conduct before the commencement of the workplace manslaughter laws may still be relevant for the purposes of Worksafe prosecution if an organisation’s omission to amend unsafe work policies had caused a workplace fatality post-commencement.

The maximum penalty for this offence is 20 years’ imprisonment for a natural person, or 100,000 penalty units ($16,522,000) for a body corporate.

A person accused of workplace manslaughter (being a natural person, a body corporate, a partnership, an unincorporated body or an unincorporated association) and who is not an employee or volunteer will be guilty of workplace manslaughter if they engage in conduct that:

• Is negligent;
• Constitutes a breach of an applicable duty that the person owes to another person (being a duty imposed by Part 3 of the OHS Act (but excluding those duties owed by employees or duties not to recklessly endanger a person at a workplace); and
• Causes the death of that other person.

For the purpose of workplace manslaughter, conduct is negligent 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
• A high risk of
  • Death; or
  • Serious injury; or
  • Serious illness.

The offence is also intended to capture conduct causing a person to be injured or contract an illness (including a mental illness) that causes the person’s death at a later point in time (including after the cessation of employment), in line with general principles of causation.  For example, if an employee developed an asbestos-related disease which causes their death well after an employer had exposed that employee to asbestos without the use of adequate personal protective equipment, the employer may be guilty of workplace manslaughter.

This article should serve as an important reminder for all organisations to review their workplace safety policies, procedures and compliance with the OHS Act.

In preparation for the commencement of workplace manslaughter laws, all businesses and its directors and officers should be thinking about:

1. Who are the people responsible for providing workplace safety training? Speak to them about: 

   1. What type of training is provided;
   2. The regularity of the training provided;
   3. What evidence is kept of the training provided;
   4. What external expertise, if any, are being utilised;

2. What written safety processes have been circulated in the workplace, including:

   1. General OHS policies;
   2. Safe Work Method Statements (SWMS);
   3. For specific high risk activities or machinery;

3. With respect to the maintenance, service and inspection of plant and equipment:

   1. What are the plant and equipment;
   2. Who completes them;
   3. When are they performed; and
   4. What records are kept of those activities;

4. What workplace health and safety auditing arrangements are in place;

5. What external safety resources or protective mechanisms are utilised and whether they are adequate;

6. Having a list of key contact persons for:

   1. Insurance enquiries (do your current insurance policies cover defence costs for workplace manslaughter);
   2. Workplace safety auditing enquiries;
   3. Worksafe enquiries; and
   4. Legal enquiries;

7. Whether you have a post-incident plan.

If you have any questions on how new workplace manslaughter laws may affect you or your business, please contact the MST Lawyers Employment Law team by email or call +61 3 8540 0200.