November 28, 2019

Workplace Manslaughter Offences Become Law in Victoria

From 2020, businesses and officers in Victoria whose negligent conduct cause a workplace death may be guilty of workplace manslaughter. While companies, associations and partnerships will face fines of up to AUD16.5 million, sole traders and officers could face up to 20 years of gaol time.

It is clear from the Queensland experience that these workplace manslaughter offences are not just hypothetical. In Queensland, Brisbane Auto Recycling Pty Ltd was charged on 25 October 2019 with industrial manslaughter relating to a worker who was struck and killed by a reversing forklift at a wrecking yard following the alleged failure to separate pedestrians and mobile plant. The industrial manslaughter charge is before the Holland Park Magistrates Court for committal on 29 November 2019.

This charge demonstrates that WHS regulators and prosecutors are not simply going to leave these offences on the statute books without testing them in Court. As such, there are very real consequences requiring serious consideration.

Since Victorian workplace manslaughter offences passed in Victoria on 26 November 2019, there have been similar developments in other jurisdictions. The Northern Territory's industrial manslaughter laws passed on 27 November 2019.[1] Queensland has now announced that its industrial manslaughter offences will be extended to its mining specific safety legislation [2] and Western Australia introduced its Work Health and Safety Bill 2019 (WA) into Parliament which includes industrial manslaughter offences.

In this article, we will discuss the recent passage of workplace manslaughter offences in Victoria and our top tips for how to protect your business and senior leaders from being charged with these types of offences.

What Does Workplace Manslaughter Look Like in Victoria?

On 26 November 2019, the Victorian Parliament passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (WM Bill) which will amend the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and introduce workplace manslaughter offences. While the WM Bill follows similar industrial manslaughter legislation introduced in Queensland in October 2017, the Victorian workplace manslaughter offences differ from the industrial manslaughter offences in Queensland.

In Victoria, a person will be guilty of workplace manslaughter where they:

  1. engage in negligent conduct; and
  2. that conduct amounts to a breach of an OHS duty owed to another person; and
  3. that conduct causes the death of the other person;

(section 39G(1) of the WM Bill). Section 39(G)(2) of the WM Bill creates a similar offence where it is an officer's negligent conduct that causes the person's death.

As for each of the elements of the workplace manslaughter offence in Victoria:

  1. Not every act or omission causing a workplace death will amount to workplace manslaughter. The act or omission must involve criminal negligence. This requires there to be "a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances" where there is a high risk of death, serious injury or serious illness (section 39E of the WM Bill). In this regard, the WM Bill codifies the criminal negligence definition outlined by the Victorian Supreme Court in Nydam v R [1977] VR 430.
  2. The Queensland industrial manslaughter offence is entirely focused on the fatal consequence of the negligent conduct, that is, the death of a worker. By contrast, the Victorian workplace manslaughter offence requires both a fatal consequence and that the death arose from a breach of a duty owed under Part 3 of the OHS Act. That is, the workplace manslaughter offence requires evidence that a person was both exposed to a risk and that the risk resulted in their death. This includes where there has been a breach of the duty owed by employers, self-employed persons, persons with management or control of workplaces and designers, manufacturers, suppliers and installers of plant but not the duty owed by employees (section 39B of the WM Bill).
  3. In Queensland, industrial manslaughter offences only apply to deaths of workers carrying out work for the business or undertaking. This has been the subject of criticism as the Model WHS Laws generally provide for organisational duties to both workers and other persons. The Victorian offence provisions are not limited in the same way. Rather, they apply to the death of workers and other persons provided that the death arose from the breach of an OHS duty owed to them.

While no commencement date has been announced for the workplace manslaughter offence, it is expected that it will apply to any negligent conduct occurring on or after 1 July 2020.

To whom do Victoria's Workplace Manslaughter Offences Apply?

In Victoria, both businesses and officers can be charged with workplace manslaughter.

Where a business (which includes companies, associations and partnerships) is found guilty, they could face fines of up to AUD16.5 million. A sole trader who conducts a business (but not a volunteer) could face up to 20 years of gaol time if found guilty.

Officers found guilty of workplace manslaughter in Victoria could also face up to 20 years in gaol. Unlike the Queensland offence which applies to executive officers [3], the Victorian offence applies to any person considered an officer under the Corporations Act 2001 (Cth). This includes directors, secretaries and any person who can substantially affect the corporation's business or financial standing.

Why Workplace Manslaughter?

Like most states and territories, the move towards workplace manslaughter in Victoria follows the death of four people at Dreamworld in October 2016. The laws were a 2018 election promise of the Victorian government and are aimed at sending "a message to employers that putting lives at risk in the workplace will not be tolerated".[4]

The view of the Victorian government, and rightly so, is that every family is entitled to expect their loved ones to come home from work each day. Yet, in the last five years, there have been over 100 people killed at work in Victoria. On average, there are 30 workplace deaths in Victoria each year with 19 so far in 2019. Each death leaves a lasting impact on the families, friends and colleagues of those workers.

With the workplace manslaughter offences, the Victorian government has stated that "the purpose of the workplace manslaughter offences is to hold those with the power and resources to improve safety to account".[5] The goal is for businesses to ensure that they have the right systems, controls and equipment in place and a workplace culture directed towards improving safety in the workplace across all industries. The government hopes that the deterrent of workplace manslaughter, together with the threat of imprisonment terms, will provide a greater incentive for businesses to improve workplace safety and help stem the number of workplace deaths.

How Should My Business Prepare for Workplace Manslaughter?

Put simply, the best way to avoid you or your business being charged with workplace manslaughter is to not have a fatality in your operations. This may sound trite, but it means focusing both your organisation and its senior leaders on the prevention of catastrophic incidents. In that regard, we recommend that organisations and officers undertake the following:

1. Ensure that organisations and officers understand the critical health and safety risks in their operations and have verified that controls for those critical hazards and risks are implemented and working effectively. In that regard, we note that in 2018, 91% of prosecutions around the country following serious incidents involved 10 particular mechanisms of injury / fatality:


The same 10 mechanisms were involved in 95% of prosecutions in 2017. We note also that in 2018, 45% of prosecutions involved issues of contractor management or a failure to consult, co-ordinate or co-operate on health and safety matters with other duty holders.

We recommend that organisations reflect on how these issues relate to their operations and the critical control measures they have in place to avoid such incidents.

2. Update your organisation's incident investigation protocols to increase the focus on investigating serious near miss / hit incidents. In every fatal incident investigation that we see, there are a number of related near miss / hit events that have previously occurred but have failed to trigger as an early warning sign for organisations of the risk that fatal consequences may occur. The timely close out of investigation action items for potentially fatal near misses / hits is critical to preventing the next fatality from occurring.

3. Establish fatal incident response protocols for your organisation. These protocols need to reflect on the different issues in fatal incidents in light of workplace manslaughter offences. You should conduct incident response training and conduct emergency drills in your organisation so that you and your personnel are prepared for complying with your legal obligations in the events following a notifiable incident. To respond quickly and effectively to fatal incidents, you should consider establishing legal panels with multiple specialist health and safety lawyers. With the threat of gaol sentences and substantial fines, you may require multiple lawyers to attend to the different legal interests of the company and individuals who may be involved in the incident.


Footnotes
1. Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 (NT).
2. Queensland, Parliamentary Debates, Legislative Assembly, 27 November 2019, 3817 (Anthony Lynham, Minister for Natural Resources, Mines and Energy).
3. The Queensland industrial manslaughter offences apply to both PCBUs and Senior Officers. For the purpose of the Queensland offences, Senior Officers include executive officers of corporations and individuals who make, or take part in making, decisions affecting all or a substantial part of the business' functions. This extends beyond senior management to possibly include middle managers. For further information on the Queensland industrial manslaughter offences, see our Industrial Manslaughter Reform report at https://www.clydeco.com/insight/article/industrial-manslaughter-reform-the-rise-of-a-solution-not-fit-for-purpose.
4. Victoria , Parliamentary Debates, Legislative Assembly, 30 October 2019, 26 (Jill Hennessey, Attorney-General and Minister for Workplace Safety).
5. Explanatory Memorandum, Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 2.