Victoria introduces workplace manslaughter legislation

This article was written by Murray Kellock.

On Monday, the Victorian Parliament passed legislation that will create the new criminal offence of workplace manslaughter in Victoria.

The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 is designed to amend the Occupational Health and Safety Act 2004 (Vic) (OHS Act), to include this new offence.

We have set out brief answers to some key questions below.

What is 'workplace manslaughter' and why is it the subject of legislation?

• In essence, the concept of workplace manslaughter involves an employer's negligent conduct – whether action or inaction – which causes the death of an employee or a member of the public.
• There are 3 basic criteria for an employer (or officer) to potentially fall foul of this new law: first, the employer's (or officer's) negligence; secondly, the employer's (or officer's) breach of a duty owed to an individual; and thirdly, that individual's resulting death.
• The legislation is designed to strengthen Victoria's legal framework dealing with OHS responsibilities employers owe to their employees and the public, to ultimately prevent workplace deaths and make workplaces safer.
• The soon-to-be law follows a 2018 independent review of model Work Health and Safety (WHS) Law commissioned by Safe Work Australia at the request of WHS Ministers, which recommended the offence's introduction. Several other states and territories are taking similar steps.

In what situations will the offence of workplace manslaughter potentially apply?

• Minister for Workplace Safety, Jill Hennessy confirmed in October that the offence will not only apply to deaths resulting from physical injuries, but also certain situations of workplace-associated mental injury leading to suicide.
• Other examples of workplace-linked deaths may include diseases such as silicosis, or where a member of the public dies due to the employer's negligent conduct.
• WorkSafe Victoria will be tasked with investigating offences using its OHS Act powers.

• The offence will apply to the employer, whether it takes the form of a corporation, a unincorporated entity (such as a sole trader), or a partnership.
• Senior officers of the employer can also be held responsible where they fail to take reasonable care.
• Volunteers are excluded from the legislation's scope.

• If an employer is found to have negligently caused a workplace death, fines of up to $16.5 million apply, as well as 20 years' jail for individuals.
• A senior officer of the employer may also face imprisonment for up to 20 years, as well as fines of up to $1.65 million, if found responsible.

• Have a safe system of work in place: review your occupational health and safety arrangements and systems, taking into account both physical and mental health and safety matters.
• Consider not only whether your workplace policies are well-drafted, but also whether you implement them effectively across your business.
• Be aware that once assented to, the legislation will take effect in the coming months, either on a date to be proclaimed or on 1 July 2020.

Feel free to reach out to us if we can be of assistance with any OHS matters that you encounter – we're here to help.