Victoria's new workplace manslaughter offences

Understanding workplace manslaughter webinar

In advance of the new legislation coming into effect on 1 July 2020, WorkSafe held an educational webinar about workplace manslaughter and what it means for Victorians. A panel of WorkSafe experts discussed who the legislation applies to and what employers and workers need to do in order to comply.

If you missed out on the day, you can catch-up by watching the video.

A new criminal offence of workplace manslaughter has been introduced into occupational health and safety laws.

The offence applies to negligent conduct by an employer or other duty holders as outlined below, or an officer of an organisation, which breaches certain duties under the Occupational Health and Safety Act 2004 (OHS Act) and causes the death of another person who was owed the duty.

The workplace manslaughter provisions will not operate retrospectively. This means that only a death that occurs after 1 July 2020 will be considered.

The new law aims to prevent workplace death, provide a stronger deterrent for duty holders to comply with their occupational health and safety obligations, and to send a strong message that putting people's lives at risk in the workplace will not be tolerated.

The changes do not create additional duties; they introduce tougher penalties on already existing duties under the OHS Act. Just as the law currently provides, employers and duty-holders should stop to think about the risks involved in the conduct of their business, and what steps can be taken to mitigate those risks.

If you are already complying with your OHS duties, you are doing the right thing and you will not need to do anything different from 1 July. If you are not complying, the consequences for not thinking about workplace risk can be much more severe.

Elements of the offence of workplace manslaughter

The elements of the new workplace manslaughter offence are:

• the person charged must be a body corporate or a person who is not an employee or volunteer
• they must have owed the victim a specified duty under the OHS Act
• they breached the duty owed by negligent conduct
• the breach of the duty caused the death of the victim, and
• if the person charged is a natural person they must have acted consciously and voluntarily when breaching the duty owed

Who can be charged with workplace manslaughter?

Organisations and self-employed persons

Organisations and self-employed persons who hold specified duties under the OHS Act (as outlined below) can be prosecuted for the offence of workplace manslaughter. Organisations include:

• bodies corporate (for example, registered companies)
• incorporated associations
• statutory authorities
• trustee of a trust
• unincorporated bodies and unincorporated associations
• partnerships
• government entities

Officers

Officers of body corporates, partnerships, and unincorporated bodies or associations may also be charged with the offence of workplace manslaughter if their organisation holds specified duties under the OHS Act.

Officers are individuals at the highest level of an organisation, who have the power and resources to improve safety, including:

• a director or secretary of a corporation
• a person:
  • who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business; or
  • who has the capacity to affect significantly the entity’s financial standing; or
  • in accordance with whose instructions or wishes the directors of a corporation are accustomed to act
• a partner in a partnership
• an office holder of an unincorporated association

Employees and volunteers

The offence of workplace manslaughter does not apply to a volunteer or an employee, unless the employee is also an officer of an organisation.

However, an employee can still be prosecuted for breaching existing duties under the OHS Act, including the duty to:

• take reasonable care for their own health and safety, and the health and safety of others, in the workplace
• cooperate with their employer regarding actions the employer takes to comply with OHS laws
• not intentionally or recklessly interfere with or misuse anything provided at the workplace to support health, safety and welfare
• not recklessly engage in conduct that may place another person at a workplace in danger of serious injury

Relevant OHS Act duties and duty holders

The workplace manslaughter offence applies where there is a breach of specified existing duties under the OHS Act. The laws do not create any new duties under the OHS Act.

Employers, officers and others who are already complying, and who continue to comply, with their existing OHS obligations cannot be charged with workplace manslaughter. What the new laws do is make the consequences for a serious breach of those duties much more severe.

The relevant existing duties include:

• the duty of employers to provide and maintain a working environment for employees that is safe and without risks to health
• the duty of employers to monitor the health of employees and working conditions
• the duty of employers to ensure persons other than employees are not endangered by the conduct of the business (including visitors, the public and other workers)
• the duty of self-employed persons to ensure persons are not exposed to OHS risks from their undertaking
• the duty of persons with the management or control of a workplace to ensure that the workplace and the means of entering and leaving it are safe
• the duty of designers to ensure plant, and buildings and structures that are used as workplaces, are safely designed
• the duty of manufacturers and suppliers to ensure plant or substances are safely manufactured and safe to use
• the duty of a person not to recklessly engage in conduct that may place another person at a workplace in danger of serious injury

Each of these duties requires the relevant duty-holder to meet the duty 'so far as reasonably practicable'.

More detail regarding these duties is available on the WorkSafe website.

Negligent conduct

For the purposes of workplace manslaughter, conduct will be considered 'negligent' if it involves:

• a great falling short of the standard of care that a reasonable person would have taken in the circumstances, and
• a high risk of death, serious injury or serious illness

Negligent conduct also includes a failure to act (an 'omission'), for example it may include when a person:

• does not adequately manage, control or supervise its employees, or
• does not take reasonable action to fix a dangerous situation, where failing to do so causes a high risk of death, serious injury or serious illness

The test is based on the existing common law test for criminal negligence in Victoria, and is an appropriately high standard considering the significant penalties for the new offence.

Causation

The conduct of the organisation or person charged with workplace manslaughter must have caused the death of the victim.

It is intended that the existing common law test for causation apply. This means that the acts or omissions of the person charged must have contributed significantly to the death, or have been a substantial and operating cause of it. It is not necessary to establish that the acts or omissions of the person charged were the sole cause of the death. The conduct must be such that an ordinary person would hold it, as a matter of common sense, to be a cause of the death.

Workplace manslaughter may apply even when the death of the person occurs some time after the relevant conduct, for example where an employee developed an asbestos-related disease years after an employer negligently exposed them to asbestos.

Penalties

If convicted of workplace manslaughter, the following penalties apply (as at 1 July 2020):

• a maximum of 25 years imprisonment for individuals, and
• a maximum fine of $16.5 million for body corporates

These penalties reflect the seriousness of the offence and are designed to help prevent workplace deaths by creating a strong deterrent for organisations and individual officers against breaching their occupational health and safety duties.

Investigation and legal process

As with other alleged breaches of the OHS Act, WorkSafe will lead investigations into potential workplace manslaughter offences.

Following a workplace fatality, and consistent with existing arrangements, WorkSafe and Victoria Police will work together to ensure all evidence is preserved and the worksite is safe and without risks to the health of persons present or likely to attend the site.

In line with current arrangements, WorkSafe will have carriage of a workplace manslaughter matter until the accused has been committed to stand trial. The Office of Public Prosecutions will then take the matter to trial.

Workplace manslaughter is an indictable offence with no statutory limitation period. It cannot be heard and determined summarily (in the Magistrates' Court of Victoria).

Support for families impacted by a workplace fatality

A single workplace death is one too many. When someone tragically dies as the result of a workplace incident, we are determined to ensure their family gets the support they need.

We have implemented a suite of support reforms, endorsed by the Victorian Government, that increase support for families of those who lose their life at work. These reforms include increased integration between WorkSafe and Victoria Police, additional dedicated Family Liaison Officers and Agent Family Support Specialists available to provide information and support to families and dependents following the death of a loved one.