An offence of “workplace manslaughter” is set to be introduced into the Occupational Health and Safety Act 2004 (Vic) (“OHS Act”) in Victoria.
The proposed legislation was introduced on 29 October 2019 and is currently before the Parliament.
In 2002 the then Bracks Government unsuccessfully tried to introduce similar legislation. The primary difference in the 2019 Bill is that it does not include offences for negligently causing serious injury. It is confined to workplace deaths.
Commencement of the legislation
The proposed legislation is scheduled to commence from 1 July 2020.
However, negligent conduct that organisations engaged in prior to 1 July 2020 is still relevant where the organisation has an opportunity to correct the conduct after commencement of the legislation.
Objects of the legislation
The objects behind the creation of the new offence are:
(a) to prevent workplace deaths;
(b) to deter organisations and relevant individuals who owe duties from breaching those duties; and
(c) to reflect the severity of conduct that places life at risk in the workplace.
Whose conduct does the offence cover?
The offence covers those who owe applicable duties under the existing provisions of Part 3 of the OHS Act. However, controversially for some, it excludes duties owed by employees who are not also officers of the organisation.
The definition of “officer” from the Corporations Act 2001 (Cth) is retained.
This covers the conduct of:
(a) directors; and
(b) people who participate in making decisions that:
(1) affect a substantial part of the business; or
(2) have the capacity to significantly affect the organisation’s financial standing.
This achieves the Government’s stated aim of targeting individuals at the highest level of the organisation with the power and resources to improve safety, by holding them and the organisation to account. The Government considers that employees who are not officers do not have a sufficient level of power or resources to improve safety standards.
What victims will be covered by the proposed offence?
The offence will apply to the death of anyone who is owed a relevant duty under the OHS Act. This can include members of the public, as well as employees and contractors.
The offence does not extend to serious injuries in the workplace, unlike the earlier 2002 incarnation of the legislation.
How can the offence be proven?
Relevant conduct for the offence includes both acts and omissions.
The offence is made out if an organisation or an officer of the organisation engages in conduct that:
(a) is negligent;
(b) breaches an applicable duty (owed by the organisation or officer to another person); and
(c) causes the death of that person.
The conduct is negligent if it involves:
(a) a great falling short of the standard of care that would have been taken by a reasonable person; and
(b) a high risk of death, serious injury or serious illness.
This test involves the adoption of the common law standard of criminal negligence in Victoria.
Significantly, an organisation can be found indirectly guilty of workplace manslaughter because the accumulated conduct of different officers may be considered collectively sufficient to establish the requisite degree of negligence.
In addition, the explanatory memorandum to the Bill suggests that direct liability might be established against an organisation where it’s unwritten rules, policies, workplace practices or conduct implicitly authorised non-compliance or failed to create a culture of compliance.
The major sting in the tail to the new offence is in the penalties to be introduced.
The maximum penalty for an organisation is $16.5 million. For individuals, the maximum penalty is $1.65 million (representing a fourfold increase from the existing maximum penalty under the Sentencing Act 1991 (Vic) of $396,000) or 20 years imprisonment.
Taking steps to prepare for the legislation
Preparation for this legislation is important. This includes reviewing the hazards in your workplace and controls currently in place, as well as your existing policies and “unwritten practices” relating to health and safety issues.
For further information or assistance, please contact David Thompson or Richard Scougall on 8602 9252.