Victoria comes into line with ACT and Queensland with the introduction of industrial manslaughter legislation
Industrial manslaughter has become a matter of national interest in recent times, following a series of high profile and tragic workplace deaths.
History
In 2003 the ACT was the first to introduce industrial manslaughter as an offence under its general criminal legislation.
Queensland introduced industrial manslaughter laws in 2017 and announced its first prosecution under the new laws late in 2019 (Queensland's industrial manslaughter laws extend only to deaths of workers, and not members of the public).
In NSW, a draft bill was introduced in early November 2019 which aimed to clarify that some workplace related deaths can be prosecuted under the existing manslaughter offence in its criminal legislation.
WA is considering introduction in the near future, and NT has changes coming into effect after Victoria.
Only Tasmania and SA will be without comparable legislation.
Clearly these inconsistencies nationally pose challenges for businesses that operate across multiple jurisdictions.
Victoria
Industrial manslaughter is now a criminal offence in Victoria under new laws passed by the state’s parliament. The introduction of these two new offences in Victoria reflects a trend toward imposing severe penalties upon individuals for breaches of the OHS Act. The amendments are consistent with industrial manslaughter laws that have recently been introduced in the Northern Territory, Queensland and the Australian Capital Territory.
The implications of the amendments are that significant penalties, including imprisonment will apply to corporations or persons who engage in negligent conduct that breaches OHS obligations causing the death of an employee or member of the public.
The move accompanies a $10 million expansion to WorkSafe Victoria’s investigation and enforcement capacity, set up to lead workplace manslaughter investigations and prosecutions.
The fine print
The bill amends the Occupational Health and Safety Act 2004 (Vic) (OHS Act) by creating two new offences relating to ‘workplace manslaughter’.
New laws take full effect on the 20th July 2020.
A person (including a corporation or their officers) will be guilty of ‘workplace manslaughter’ after the provisions become operational if they:
engage in negligent conduct; and
that conduct amounts to a breach of an OHS duty owed to another person; and
that conduct causes the death of another person.
A breach of the manslaughter offences carries a maximum term of 20 years imprisonment for individuals while a body corporate may be fined more than $16 million.
Employees who are not officers are excluded from the offences’ application.
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.
In our experience mental injuries are not being adequately considered when businesses tailor their mitigation strategies in preparation for the changes. Consider for example a company that had an internal policy which prevented front line call centre staff from terminating abusive calls. What impact could that have if a vulnerable staff-member was repeatedly exposed to this day-in day out? And how would that business be held accountable if the employee were to take their life as a result of the unrelenting stress of their role?
Steps each business must take:
reviewing all the potential hazards and risks in the workplace, including mental health risks and ensuring that these are incorporated in the OHS approach;
completing a formal review of all the safety systems and controls currently in place and ensure they are fully effective (including a mental health risk assessment and compliance plan);
reviewing all existing policies including "unwritten practices" relating to health and safety;
reviewing OHS leadership and culture to ensure that any alleged negligent conduct is not authorised or permitted by the company or culture;
education and awareness for directors, senior officers and managers on the new legislation and offences;
reviewing incident management capability, including root cause analyses
consideration of insurance arrangements for your organisation and officers.
Need help?
The AB Phillips People Risk Solutions team can audit workplaces, policies or processes to ensure companies are mitigating the key risks posed by the upgraded manslaughter legislation. We can identify gaps that may lead to non-compliance and assist in addressing these with as little impact to your business as possible.
Mark Liebman is AB Phillips’ People Risk and Workers Compensation Manager. He has two decades experience across risk management, compliance and personal injury - working with businesses of all sizes to implement and refine their programs and improve the safety of their workplaces. Mark’s team provide a range of services aimed at assisting employers with managing people risks; including tailored Workers Compensation products to reduce your premium cost. To contact Mark call 03 8586 9382 or email advice@abphillips.com.au
Information is provided as comment and should not be relied on as a substitute for detailed professional advice from AB Phillips or professional legal or financial advice on any matter. Where you would like additional information and support about the content in this document please contact AB Phillips.