WorkSafe is ensuring the safety of workers by laying charges against employers who do not provide the required safety measures to prevent injuries and fatality of workers.

This effort is in response to workplace manslaughter becoming a criminal offence in Victoria in 2020, with employers found to be negligent facing 20 years in jail or fines of up to $16.5 million.

The new laws came into effect on 1 July 2020 and apply to employers, self-employed people and ‘officers’ of the employer. The Victorian Government passed the workplace manslaughter laws under The Workplace Safety Legislation Amendment Bill 2019.

Are businesses and employers being charged?

Yes, employers are being charged and the penalties are significant.

Recent WorkSafe cases include:

• 22 Feb 2020 – Eight charges were laid over an apprentice jockey’s death. WorkSafe has charged a turf club and trainer following the death of an apprentice jockey who was thrown from a horse during trackwork.
• 17 Feb 2020 – Charges laid over fatal wall collapse. WorkSafe has charged a contractor following the death of a worker at a residential building site in Ballarat.
• 16 Feb 2020 – Tip fined $45,000 following serious fall. A Gippsland tip operator has been convicted and fined $45,000 after a woman was seriously injured when she fell 2.5 metres into a skip bin in Nov 2018.
• 12 Feb 2020 – Ballarat hospital fined after staff assault. Ballarat Health Services has been fined $20,000 without conviction for failing to inform staff about occupational violence and aggression risks in the workplace in 2018.

While the consequences for the employer are great, needless to say there will be lives forever drastically impacted by these fatalities and injuries.

When will a conviction occur?

A conviction will be made in cases where the following is proven:

• the accused is a body corporate or a person who is not an employee or volunteer;
• the accused owed the victim a duty of care pursuant to the Occupational Health and Safety Act, namely, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health;
• there was a breach of the duty in circumstances where there was a high risk of death, serious injury or serious illness;
• the act that constituted the breach was committed consciously and voluntarily; and
• the breach of the duty caused the victim’s death.

The law requires a negligent criminal breach of the duty of care that caused the death. This means that the employer’s acts or omissions must have contributed significantly to the death.

Negligence will be established where the conduct of the employee involves failing to meet the standard of care that a reasonable person would have exercised in the circumstances. The test in Victoria also considers what a reasonable person would have done in the circumstances. This means that if an employer does not take reasonable action to address risks or fix a dangerous situation, they are also being negligent.

WorkSafe Victoria has shared a webinar titled ‘Understanding Workplace Manslaughter’ and additional information for further exploration.

Alternately, we encourage anyone who has experienced a workplace injury to seek legal advice.