Published: 07 November 2019
Author: Michael Burdess
Proposed law makes workplace manslaughter a criminal offence
The Victorian State government has very recently introduced to Parliament proposed changes to the Occupational Health and Safety Act to include a new offence of workplace manslaughter.
The objectives of the new legislation are to prevent workplace deaths and deter people who owe duties under the Occupational Health & Safety Act from breaching those duties, as well as to reflect the severity of conduct that places a life at risk in the workplace. The introduction of the Bill has been met with support from victims’ families and unions, and scepticism or opposition from some employer and industry groups.
The Bill states that the purpose of the workplace manslaughter offences is to hold those with the power and resources to improve safety to account.
Details on the proposed legislation are now available
The proposed law states that a person cannot avoid liability by arguing that negligent conduct (for example an unsafe work practice or policy) occurred or commenced before commencement of the new legislation, if an opportunity to correct the negligent conduct arose after the new law commenced. As such, arguing that the workplace conduct engaged in was a long-held practice or a holdover from an old regime may well not be a defence to a charge of workplace manslaughter. The proposed law notes that an organisation's omission to amend an unsafe workplace policy after commencement of the new legislation would be a relevant point for the purposes of prosecution.
The definition of negligence given in the proposed legislation is based upon the common law standard of criminal negligence in Victoria. This appropriately aligns as best as can be done, occupational health and safety law with the criminal law.
Under the proposed new law, negligence will involve a "great falling short of the care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in, and involves a high risk of death, or serious injury or serious illness (which is intended to include occupational diseases which would be deemed a serious illness)".
Courts are given discretion to have regard to steps taken or things provided by the employer to prevent or minimise the risk of death or serious injury or illness.
The proposed legislation goes on to note that an employer that complies with its occupational health and safety obligations should not be captured by the workplace manslaughter offence. The employer will only bear responsibility if the employee or other entity that acts negligently is acting within the actual or apparent scope of their employment or authority. The example given is if a “rogue” employee or agent acts contrary to directions provided by the employer, then the employer is not expected to be held liable for any serious injury or death resulting.
It is important to note that the law covers not only deaths of employees but also members of the public. Volunteers are excluded from workplace manslaughter laws.
Various industry bodies and employer representatives have expressed concern regarding the proposed laws, which they say may have unintended consequences, unfairly impact small or family business or potentially discourage people from starting a business.
We note that the explanatory memorandum for the legislation states that the prosecutor will still have prosecutorial discretion in relation to whether workplace manslaughter charges are brought. For example, if charges are not in the public interest they may not be brought. The specific example given in the memorandum is when a family member dies in a family run business, it may not be appropriate to bring a prosecution.
In my opinion, if someone is worried about criminal charges if their employee dies due to the business owners unsafe work practices, then it is a good thing if they do not go into business. Employers that do the right thing should have nothing to fear. Only those incidents that involve a “great falling short of the care that would have been taken by a reasonable person” are covered. The bar to satisfy this test is high. High enough that it should not deter any reasonable person from starting a business.
Some employer organisations have argued these laws will hurt the cause of workplace safety as there will be a reduced exchange of information arising out of workplace deaths, if there are potential criminal proceedings against the employer. All workplace deaths in Victoria are already reviewed by the Coroner.
Those accidents not potentially caught by the new legislation can continue to be discussed. Those that are caught are going to have a very bright light turned on them – a criminal prosecution, including a very detailed review of all the circumstances. I believe it is more likely to lead to improvements in workplace safety and will raise awareness with employers of practices that are unsafe.
For any further reading, the Bill is called the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019.
Please note: This blog represents the opinion of the author only and does not necessarily reflect any views held by Ryan Carlisle Thomas or Stringer Clark lawyers.