Victoria follows other states with the introduction of new 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 new law is quite broad in its scope and has the potential to find employers, organisations and its senior officers responsible for workplace deaths.
According to a media release by the Hon Jill Hennessy (Minister for Workplace Safety), "Too many Victorians have had their lives tragically cut short after simply going to work and this new offence will hold employers who don't put safety first to account."
A maximum penalty of 20 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.
Since its introduction in 2018 in Queensland there has been one recorded prosecution for workplace manslaughter against a Brisbane recycling company in October 2019. Proof that the authorities are willing to carry through with prosecutions when required.
When will workplace manslaughter offences come into effect in Victoria?
According to a Worksafe Victoria news release, it is expected that this law will come into effect by 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 penalties can be applied?
A maximum penalty of 20 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 investigative authority and will use their powers under the OHS Act to prosecute.
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".
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.
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. Why not conduct a quick 3 minute Height Safety Health Check to ascertain your level of risk?
- Download the Victorian State Government's Fact Sheet which details the key elements of the new laws.
- Read our Top 7 Tips for Building Owners.
- Keep our interactive document, What is the Law on hand as your go to guide for your legal requirements.
- Our Working at Heights Manual and Working at Heights Checklist offer practical tips and assist with ensuring your compliance and reducing your liability.
- Read Working at Height - Safety on a Page before conducting any work at height.