The Victorian Parliament recently passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Bill), to introduce a new offence of ‘industrial manslaughter’ under section 39G of the Occupational Health and Safety Act 2004 (Vic) (OHS Act).
The Bill comes just months after the national “Review of the model WHS laws: Final report” delivered 34 recommendations aimed at improving clarity and consistency in the application and enforcement of the model laws across Australia. The review ultimately found the model laws have been operating as Parliament intended, although some changes are needed.
The delivery of the Report is said to have fuelled expectations of the wider community, being that when a person is killed at work due to the negligence of their employer, then that employer must be held responsible, in the same way as any other person who commits manslaughter.
With 24 workplace deaths having occurred across Victoria in 2018-19, the new legislation aims to fill an apparent “gap” in the law, which until now has allowed employers to avoid criminal prosecution where they have allegedly contributed to a workplace death. The purpose of the new legislation however is said not to be to inspire acts of retribution, but to further incentivise employers to allocate sufficient training and resources to workplace safety, which in turn, aims to reduce Australia’s workplace death toll.
Employers should therefore ensure they are informed and prepared for the introduction of the new legislation, which is due to commence by 1 July 2020. Failure to do so could result in new maximum penalties under the OHS Act, including, at worst, possible jail time. The imposition is not limited to an organisation itself, meaning individuals in positions of responsibility, such as company directors and senior managers, must be aware of the situations in which they could be held personally liable.
Under the new section 39G of the OHS Act, a person, a body corporate, an unincorporated body or association or a partnership, including government entities and officers of these entities (but not employees or volunteers), must not engage in negligent ‘conduct’ that is in breach of an ‘applicable duty’ they owe to another person, and which causes the death of that person.
An ‘applicable duty’ refers to the duties already owed by persons under Part 3 of the OHS Act, such as employers, officers, and the self-employed, and includes duties such as the duty of an employer to, so far is as reasonably practicable, provide and maintain for its employees a working environment that is safe and without risks to health. Notably, an applicable duty does not extend to the duties owed by employees under section 25 of the OHS Act, such as the employee’s duty to take reasonable care for their own health and safety while at work, and for the health and safety of persons who may be affected by the employee’s acts or omissions at a workplace.
An applicable duty also does not extend to duties of employees relating to reckless endangerment under section 32 of the OHS Act, which otherwise prohibits persons (without lawful excuse) from recklessly engaging in conduct that places or may place another person in the workplace in danger of serious injury.
The Bill therefore places a strong emphasis on the duties of employers. ‘Conduct’, being an act or an omission to perform an act, is defined to be negligent where 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, serious injury or serious illness”.
Employers should note that these obligations apply not only to an employee’s death, but also extend to situations where negligent conduct causes the death of a member of the public. This is an extension of the position in other jurisdictions.
An organisation who is found to have negligently caused a workplace death may face a penalty of up to $16.5 million. For individuals, fines of up to $1.65 million and up to 20 years imprisonment may be imposed. This is commensurate with other manslaughter offences.
Victoria is now one of three Australian State/Territory jurisdictions to have introduced an industrial manslaughter offence, with the ACT enacting similar provisions under its Criminal Code in 2004, and Queensland having done so in late 2017.
Interestingly, during its approximately 15 years of operation, not a single prosecution has been made under the ACT legislation. This may soon change, however, as proceedings remain on foot in relation to the death of a worker at the University of Canberra Hospital construction site.
In Queensland, Brisbane Auto Recycling Pty Ltd recently became the first entity to be accused of negligently causing the death of a worker under section 34C of the Work Health and Safety Act 2011 (Qld), after one if its employees was killed by a reversing forklift in May this year. That decision is currently being heard.
Western Australia may also soon follow suit, as the Western Australian Labor government recently introduced the Work Health and Safety (WHS) Bill to State Parliament.
The current New South Wales government has rejected the case for introducing industrial manslaughter laws, saying that it will instead be focussing on targeting “risky work practices” in new legislation.
To prepare for the commencement of the new Victorian legislation, employers should conduct a formal review of their existing occupational health and safety systems. This should involve:
Employer’s should ensure that appropriate training and education on the new legislation is implemented across the organisation, and that all affected persons are adequately supported through such training or necessary upskilling.
As well as physical safety, employer’s should not forget the importance of managing the mental safety and wellbeing of their employees, as any mental injury sustained by an employee which leads to suicide, that is shown to be the direct result of negligent workplace practices and policies, could fall within the scope of the new legislation. Employers should conduct a review of any anti-bullying and harassment policies currently in place, and consider providing refresher training to all employees in these areas.
Ian Dixon, Partner
Katie White, Lawyer