We asked Gina Capasso to answer some questions provided by our readers on the new workplace manslaughter laws in Victoria. Which commenced on 1 July 2020.
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How and when were the new workplace manslaughter laws introduced in Victoria?
The workplace manslaughter laws in Victoria were introduced by the Victorian Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019. This Amending Act was passed in December 2019 and amends the Occupational Health and Safety Act 2004 (Vic) (OHS Act) to insert workplace manslaughter offences. These new offences commenced operation on 1 July 2020.
What other states have workplace manslaughter laws and has anyone been prosecuted?
The NT and Qld have industrial manslaughter offences in their respective work health and safety legislation. WA currently has a Bill before parliament which seeks to introduce industrial manslaughter laws as part of a workplace safety bill.
In a recent case in Qld of R v Brisbane Auto Recycling Pty Ltd & Ors, an incident occurred where an employee was fatally crushed by a reversing forklift. The company, Brisbane Auto Recycling Pty Ltd, was charged with industrial manslaughter and convicted and fined $3million. The directors of the company were charged with reckless conduct under s31 of the Work Health Safety Act 2011 (Qld) and were each sentenced to 10 months imprisonment, wholly suspended for 20 months.
Can an individual go to jail under the new legislation and for how long?
Yes, currently in Victoria, the maximum sentence for an individual is 25 years imprisonment.
An employee (who is not an officer) or a volunteer cannot be prosecuted for a workplace manslaughter offence under the OHS Act.
An officer is a person within the senior levels of the organisation and includes:
• a director or secretary of a corporation;
• an office holder or a partner in a partnership, unincorporated body or an association;
• a person who makes, or participates in making decisions that affect the whole, or a substantial part, of the business;
• a person who has the capacity to significantly affect the corporation’s financial standing;
• a person in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (unless the person is providing advice in a professional capacity);
• a receiver, or receiver and manager, of the property of the corporation;
• an administrator of a corporation;
• an administrator of a deed of company arrangement executed by the corporation;
• a liquidator of the corporation;
• a trustee or other person administering a compromise or arrangement made between the corporation and someone else.
What is the highest monetary fine for a company for a workplace manslaughter offence?
In Victoria, the maximum fine for a body corporate in breach of a workplace manslaughter offence is currently up to $16.5 million per breach.
How is it determined whether a person is liable for a workplace manslaughter offence?
A person is liable for a workplace manslaughter offence if a person:
who owes a duty under Part 3 of the OHS Act (excluding employees (who are not directors) and volunteers);
engages in negligent conduct (either by act or omission) that constitutes a breach of the duty owed by the person; and
causes the death of a person to whom the duty is owed (which includes duties owed to employees, contractors, and members of the public).
A person who owes duties under Part 3 of the OHS Act (excluding the s25 duties of employees and volunteers) and an officer who has duties under the OHS Act, who engages in negligent conduct that causes the death of a person to whom a duty is owed, may be prosecuted for a workplace manslaughter offence under the OHS Act.
An officer (who is not a volunteer) of an entity may be liable for a workplace manslaughter offence if they engage in negligent conduct, where there is a contravention of a duty owed by the entity to another person under Part 3 of the OHS Act, and the conduct causes the death of the person to whom the duty is owed.
What is negligent conduct? What if all processes and procedures were in place (for example, training, inductions, SWMS, etc) and a death still occurs on site?
Negligent conduct is defined as 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
involves a high risk of death, serious injury or serious illness (which is intended to include occupational diseases).
A court may have regard to measures taken or things provided by a body corporate to eliminate or minimise the risk of death, serious injury or serious illness e.g. information, supervision, training, safety system and procedures, safety equipment. Where an organisation is able to demonstrate compliance with its duties under the OHS Act and satisfies the requisite standard of care, its risk of exposure to prosecution is minimised, unless there is an act of negligence conduct that occurs.
In the case of R v Brisbane Auto Recycling Pty Ltd & Ors mentioned above where the entity pleaded guilty to causing the death of the worker, and being negligent about causing the death, Judge Rafter of the District Court of Queensland found the entity didn't have any safety systems in place or a traffic management plan at the worksite, in circumstances where a number of forklifts operated constantly in close proximity to workers and members of the public. Further the entity made no sufficient enquiries to confirm whether the forklift operator held a high risk work licence to operate a forklift.
Negligent conduct may be imputed on a body corporate that is engaged in by an employee, agent or officer acting within his or her actual or apparent authority. However, it is not intended that a body corporate's conduct would be found to be negligent solely because an employee, agent or officer acted contrary to steps taken or things provided by the body corporate.
Further the conduct must be such that an ordinary person would hold, as a matter of common sense, to be a cause of the death. The mere fact an organisation’s or officer’s conduct contributed casually to the death, or was a necessary cause of it, is not sufficient. The actions must have “contributed significantly” to the death or have been a “substantial operation cause”.
What are the duties owed by organisations and officers?
Part 3 of the OHS Act sets out the duties as follows:
the duty of employers to provide and maintain a working environment for employees that is safe and without risks to health(s21);
the duty of employers to monitor the health of employees and working conditions (s22);
the duty of employers to ensure persons other than employees are not endangered by the conduct of the business (including visitors, the public and other workers) (s23);
the duty of self-employed persons to ensure persons are not exposed to OHS risks from their undertaking (s24);
the duty of persons with the management or control of a workplace to ensure that the workplace and the means of entering and leaving it are safe (s26);
the duty of designers to ensure plant, and buildings and structures that are used as workplaces, are safely designed (s27 and 28);
the duty of manufacturers and suppliers to ensure plant or substances are safely manufactured and safe to use (s29 and 30);
the duty of persons installing, erecting or commissioning plant to ensure the plant is installed, erected or commissioned in a way to make it safe to use (s31);
the duty of a person not to recklessly engage in conduct that may place another person at a workplace in danger of serious injury (s32).
Officers of body corporates, partnerships and unincorporated bodies and associations are liable where the body corporate, partnership, unincorporated body or association of which they are an officer contravenes the OHS Act and this contravention is attributable to the officer failing to take reasonable care to ensure that the body corporate, partnership, unincorporated body or association complies with the OHS Act.
A principal contractor instructs a subcontractor to dig a trench in accordance with compliance code requirements, but the subcontractor does not do as instructed and the trench collapses and a worker dies. Can an officer of the principal contractor go to jail for a workplace manslaughter offence?
In the event that an officer who is responsible for the day to day operations and activities of the principal contractor entity on site fails to ensure adequate safety procedures and control measures are in place for the carrying out of the task safely including trench shields of the required height, battering, benching, guard rails and barricading or an exclusion zone and/or workers are not adequately informed, trained and supervised in the trenching task, and a worker dies as a result of this conduct, there is risk that an officer of the entity that owes a duty to other person under Part 3 of the OHS Act could be prosecuted for a workplace manslaughter offence.
Can a Site Manager go to jail if someone dies on the site?
A site manager who is not an “officer” of the organisation cannot be prosecuted as an individual for a workplace manslaughter offence. However, if the site manager without lawful excuse recklessly engages in conduct that places or may place another person at the workplace in danger of serious injury or death, the person may be prosecuted for reckless endangerment and be liable to imprisonment of a maximum of 5 years or maximum penalty of approximately $300,000.
Recklessness involves acting with indifference towards or in disregard of what is realised or foreseen to be the probable consequences of the relevant conduct (see Orbit Drilling Pty Ltd v The Queen. The supervisor in this case was convicted and issued with a suspended prison sentence after being found guilty under section 32 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) for directing an employee to drive an overloaded truck with faulty brakes down a steep slope which lost control and overturned, crushing the young, inexperienced driver to death.)
If a business has a site manager who oversees several projects at the same time and in the event that there was a fatality on one of the projects, could the absence of a full time site manager on site where the fatality occurred lead to prosecution for inadequate supervision?
If duty holders are compliant with their duties, they should not find themselves liable for workplace manslaughter offences.
The WorkSafe Victoria regulator states on its website regarding workplace manslaughter offences that:
Negligent conduct may include when a person:
does not adequately manage, control or supervise its employees, or
does not take reasonable action to fix a dangerous situation, where failing to do so causes a high risk of death, serious injury or serious illness.
This suggests that a failure to adequately supervise workers that contributes significantly to the death of the worker may expose an organisation and/or officer to the risk of a workplace manslaughter offence prosecution.
Anything else businesses should know about the workplace manslaughter legislative developments?
The workplace manslaughter legislative developments do not introduce new duties. However, they do introduce significant financial penalties (up to $3m) and potential imprisonment (up to 25 years) when the elements of the workplace manslaughter offences have been established.
Workplace manslaughter offences may apply in situations related to the workplace where conduct causes a person to be injured or contract an illness (including a mental illness) that later causes the person's death e.g. suicide, silicosis.
A workplace manslaughter offence may apply in circumstances where a passerby or neighbour is exposed to fatal injury caused by the negligent conduct of a business on a construction site.
Workplace transmission of COVID 19 where adequate measures are not taken in accordance with government directives and guidance by the safety regulators on managing the risk of exposure at work and which causes the death of a worker, may lead to an investigation and risk of prosecution.
A proceeding for a workplace manslaughter offence may be brought at any time. There is no time limit.
The information above has been provided in response to questions submitted in advance of publication of this article. The information is general in nature. You should always obtain specific advice regarding your unique facts and circumstances.
If you have any questions about the application and implications of the workplace manslaughter laws to your business, please contact Gina.
(03) 9491 8421