Workplace Manslaughter Laws – Are You Protected?

Victoria follows other states with the introduction of workplace laws and penalties

On 26th November 2019 Victorian Parliament passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 introducing new workplace manslaughter laws.

This law is quite broad in its scope and has the potential to find employers, organisations and its senior officers responsible for workplace deaths.

A maximum penalty of 25 years imprisonment for individuals with a maximum fine of $16.5 million for companies.

Currently Queensland, Northern Territory, Western Australia and Victoria have introduced workplace manslaughter offences. Time will tell how soon it will be before all the other states follow suit.

The first recorded prosecution for workplace manslaughter against a Brisbane recycling company was in October 2019 and there have been several others in other states since this time. Proof that the authorities are willing to carry through with prosecutions when required.

When will workplace manslaughter offences come into effect in Victoria?

This law will come into effect on 1 July 2020.

Who can be charged with this offence?

The offence of workplace manslaughter can be applied to a person (and their officers) who hold duties under Part 3 of the OHS Act. Those who fall under this category are:

• directors and secretaries of companies

• partners of a partnership or joint venture

• the trustee of a trust

• persons who participate in the making of decisions that affect a substantial part of the organisation's business

• persons who have the capacity to affect significantly the organisation's financial standing

 Employees and volunteers are not culpable.

What about architects and designers of buildings, could they be found negligent?

A person who designs a building or structure or part of a building or structure has a duty of care to ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons.

This includes the provision of safe methods and equipment for the maintenance of plant and machinery. In the case of roof mounted equipment such as HVAC (heating, ventilation, air conditioning and cooling) or objects that must be accessed at heights for example lighting or facades, there is great potential for injury.

For this reason, according to Work Safe Victoria, there is scope within these laws to find designers negligent should a death occur on one of their buildings if they are not seen to offer adequate systems for conducting this work.

What penalties can be applied?

A maximum penalty of 25 years imprisonment for individuals with a maximum fine of $16.5 million for companies. There is also ability within the offence for direct liability of an organisation to be charged, without determining individual fault.

Who and what is covered by the offence?

The death of employees, contractors and members of the public (bystanders) are all covered. Workplace manslaughter can even be charged if a person's death occurs sometime after the relevant incident.

What is negligent conduct?

Worksafe Victoria defines negligent conduct as, when a person:

• does not adequately manage, control or supervise its employees

• does not take reasonable action to fix a dangerous situation, in circumstances where failing to do so causes a high risk of death, serious injury or serious illness

Worksafe Victoria also states that "negligent conduct can include a failure to act."

Who will be responsible for the investigation of workplace manslaughter in Victoria?

Worksafe Victoria will be the authority who will use their powers under the OHS Act to investigate the incident. They will work in conjunction with Victoria Police and the Office of Public Prosecutions (OPP) and have recently set up a Fatalities Investigation team who will follow up all workplace deaths in Victoria.

To initiate charges it must be established that the accused's conduct caused the death. "The acts or omission to act must have contributed significantly to the death, or have been a substantial and operative cause of it". Additionally, "the acts or omission to act must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death".

Can other offences also be charged at the same time as workplace manslaughter?

Yes, according to Worksafe Victoria other penalties and charges can be laid in connection with the offence if there are multiple breaches of the duty of care.

Is it possible for several persons or companies to be charged with workplace manslaughter for the same death?

Worksafe Victoria has stated that depending on the situation, if it is found that several parties have been negligent in their responsibilities and that this negligence has caused the workplace death, then they can all be charged with workplace manslaughter.

An example of this may be a building owner who has sub contractors working on their property. Both the building owner and the employer of the sub contractors have a duty of care to provide a safe working environment for the the persons conducting their tasks and both could be found responsible and charged dependent on the extent of their negligence.

I'm a very small business with only a few employees, can I still be charged?

There is no difference if you have 1 or 10,000 employees you still have a duty of care to provide "as far as is reasonably practicable" a safe place for those in your employ. Ensuring that risks to your workers are mitigated or minimised is always your responsibility. The law does not discriminate between big or small companies and everyone needs to comply with their responsibilities as stated in the OHS Act.

What can you do to ensure you are protected?

Prevention is the best protection. Review your workplace OHS practices often and thoroughly. Every activity within and around your workplace that involves the potential for risk must be addressed.

If you are designing buildings ensure that you are including adequate measures to enable safe maintenance of roof mounted machinery, plant, facades, lighting or any other equipment on or around the structure. Kattsafe offer a Height Safety System Design Consultation Service to assist Architects, Designers and Installers to ensure the systems that are selected are fit for purpose and offer the utmost in height safety and fall protection.

Working at heights is classed as high risk and not providing effective equipment, systems and procedures to ensure safe access and fall protection for any work to be carried out on top of your buildings could be seen as negligent. This includes not only employees but also sub contractors and their workers.

Site audits and checks are an essential way to highlight any areas of increased risk of injury to workers.

It is important to note that the obligations for maintaining a safe place of work are still the same, it is the consequences and penalties of failing to do so that have been increased.

More information

• Check out our Know the law page and keep as your go to guide for your legal requirements.

• Our Working at Heights Manual offers practical tips and assist with ensuring your compliance and reducing your liability. 

We are here to help. Contact the Kattsafe team on 1300 301 755 or sales@kattsafe.com.au for any further assistance or to organise a site audit.