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Employers and workers advised to pay attention to landmark industrial manslaughter legislation

Victoria’s landmark industrial manslaughter legislation comes into effect from 1 July 2020.

The new industrial manslaughter legislation aims to:

prevent workplace death, and
provide a stronger deterrent for duty holders to comply with their occupational health and safety obligations.

The Occupational Health and Safety (OHS) compliance obligations have not changed but in the case of a workplace death the consequences for not complying have changed significantly. This sends a strong message to community that there is zero tolerance for putting people's lives at risk in the workplace.

Who does this legislation impact?

In the short term, this industrial manslaughter legislation needs to be of immediate concern to employers and officers and self-employed – or any person who has the means to affect a safe work culture. While the law largely remains the same, the consequences in the case of a workplace death have changed significantly and employers may face jail time.

Who can be charged with workplace manslaughter?

The new legislation impacts many from the Board member of a giant company to a self-employed tradie who manages risks and safety as a routine part of their job.

Organisations and self-employed persons who hold specified duties under the OHS Act 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 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.

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

What are the 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.

Why is this legislation needed?

The statistics are both shocking and sobering.

In 2018, there were 23 workplace fatalities.
In 2019, there were 24 workplace fatalities. This includes six deaths on farms, making them once again the most dangerous workplaces in the state. Two of the on farm deaths involved children, aged 2 and 3 years old. Another 5 deaths occurred on constructions sites. In 2019, of the workplace deaths all but one of the victims were male and eight of the victims were workers aged 60 plus.
In June 2020, WorkSafe Victoria has reported the number of workplace fatalities is already 25.

Each of these statistics represents a valued worker and the loss of their life will impact of hundreds of loved ones and colleagues. This is highlighted in myriad stories including The Courier: Another workplace death on the day new industrial manslaughter laws introduced to parliament.

In May 2019, RCT and Stringer Clark reported that Workplace death toll rises as Labor pledges industrial manslaughter laws and this new legislation is in response to rising fatalities in the workplace.

What guidelines do Victorians employers need to follow?

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

WorkSafe Victoria has clearly outlined details of the new industrial manslaughter legislation. This includes:

Webinar: Understanding Workplace Manslaughter
Who can be charged with workplace manslaughter?
Relevant OHS Act duties and duty holders
Negligent conduct
Causation
Penalties
Investigation and legal process

Stringer Clark has been serving workers in seeking legal justice for decades and our WorkCover Injury Law practice has only grown from strength to strength. We remain committed to ensuring that worker’s rights are protected and that employers and managers always put the safety of worker’s first.