Employers and business owners have an obligation to be aware of the health and safety obligations owed to persons in your business, and should regularly review any changes in the law to ensure they are meeting these obligations. Employers and business owners should also be aware of the consequences of failures to meet their OH&S obligations.
On 1 July 2020, Workplace Manslaughter became a criminal offence in Victoria when Part 5A of the Occupational Health and Safety Act 2004 (‘The Act’) came into effect. The penalty for breach of this provision is a maximum of 25 years’ imprisonment for a natural person, and 100,000 penalty units for a body corporate ($18,174,000).
The Offence
The offence of Workplace Manslaughter is set out in section 39G of the Act.
Section 39G provides that a “person” or an officer of an entity, who is not a volunteer, must not engage in conduct that:
Is negligent; and
Constitutes a breach of an “applicable duty” that that person or entity owes to another person; and
Causes death of that other person.
What is negligence?
Broadly, negligent conduct refers to a failure to take reasonable precautions to prevent risk of harm to another person. However, criminal negligence and civil negligence have different standards of liability. A common example of civil negligence would be side swiping a parked car because you weren’t paying enough attention. Criminal negligence requires much more than mere carelessness.
An act is criminally negligent in the context of workplace manslaughter if it involves:
A great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in; and
A high risk of death, serious injury, or serious illness.
Workplace manslaughter is concerned with serious breaches of OH&S duties which a reasonable person should have realised carried a high risk of death, serious injury or serious illness. It is not concerned with minor omissions of duty where death occurs in unlikely or unforeseeable circumstances.
What is an "applicable duty"?
An applicable duty is any health and safety duty owed under the Act. You can find these in Part 3 of the Act and on the WorkSafe website. This part imposes duties on employers, employees, and third parties. You, your employees and any third parties you work with regularly (e.g., contractors) should review these duties regularly to ensure you know what they are and can check whether you are complying with them.
Who can be held liable for workplace manslaughter?
To understand who in your business may be liable for a breach constituting workplace manslaughter, it is important to understand the following terms:
Person
“Person” includes natural people, companies, incorporated and unincorporated body or association, and partnerships.
Officer
“Officer” encompasses a broad number of roles including directors, secretaries, administrators, receivers and liquidators.
Officer may also include any person who make or participate in significant decisions for the entity, have the capacity to significantly affect the entity’s financial standing, or someone who’s instructions are often followed by the Board.
Volunteer
“Volunteer” includes anyone completing community work (e.g., working with charities or not for profits) voluntary basis, regardless of whether the person receives out-of-pocket expenses. A volunteer cannot commit workplace manslaughter. Civil liability for acts taken in good faith by a volunteer attaches to the organisation they represent, not the individual.
Lessons from Queensland
While the Victorian workplace manslaughter laws have not been judicially tested, cases from other states can be used to demonstrate the kinds of circumstances in which the legislation will apply. The following case from Queensland highlights the potential consequences of workplace manslaughter offence that may be implemented in Victoria. Like Victoria, Queensland has OH&S provisions imposing criminal liability for workplace deaths under the “industrial manslaughter” offence.
Last year, Queensland’s first industrial homicide conviction was handed down in R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113. In the absence of any Victorian cases, this case provides an example of the kinds of gross failures of care and systemic negligence required to prove workplace manslaughter. The Company was found guilty of industrial manslaughter and fined $3 million. Its two directors were found guilty of reckless conduct offences and given suspended prison sentences. In this case, an employee was killed when struck by a forklift being operated by an unlicensed driver. In that case, the Court found that the Company had failed to:
Implement written safety polies and procedures and instead put the onus on the employees to “look after themselves”;
Had no traffic management program for managing a worksite in which several forklifts were regularly being operated in the same space as workers;
Did not check forklift licences or conduct competency reviews, instead taking those workers’ word as to their qualifications;
Did not have a Work Cover policy.
This offending occurred over a protracted period of time and the death was caused by systemic breaches rather than an isolated failure of risk management processes.
What does this mean for your business?
While workplace manslaughter legislation is not concerned with minor omissions of duty where death occurs in unlikely or unpredictable circumstances, it is important for employers to evaluate their workplace safety standards and compliance and be proactive about and strengthen their safety risk management processes. The best defence to a claim of negligence, whether it be civil or criminal, is to have in place comprehensive risk management processes in place as this reduces the risk of reasonably foreseeable harm occurring.
This article is a brief summary of a complex area of law that is contingent on the precise facts. This article is not intended as a substitution for legal advice and cannot consider your individual circumstances. You should not rely upon this document for any particular workplace manslaughter charges and are encouraged to speak with a lawyer if you are defending an action or considering commencing one. This paper was prepared by reference to the law and information available as at 10 September 2021.
Liability limited by a scheme approved under Professional Standards legislation.
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