As of 1 July 2020, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) introduced the new offence of workplace manslaughter in Victoria as an additional avenue to sanction organisations, and certain individuals, who breach the existing duties imposed by the Occupational Health & Safety Act 2004 (Vic) (Act) that results in a workplace fatality. The offence of workplace manslaughter attracts the highest fine in Victoria – up to approximately $16.5 million - for a safety-related offence.
It is expected that Victorian prosecutorial authorities will use the offence of workplace manslaughter sparingly, and only in the most serious of cases. The recent decision of R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 in Queensland is instructive.
Employers, and individuals, should continue to comply with their existing duties under the Act, but be mindful that workplace manslaughter is now an indictable criminal offence in Victoria.
Workplace manslaughter in Victoria: what does it mean?
Why has a new offence of workplace manslaughter been introduced?
The key purposes of the new legislation are to:
- prevent workplace deaths in the future;
- deter companies and individuals from breaching their existing duties and obligations under the Act, and to send a message that compliance with occupational health and safety laws is important in Victoria; and
- reflect the seriousness of conduct that puts lives at risk in the workplace.
What is the new offence of workplace manslaughter?
From 1 July 2020, it is an indictable offence for body corporates, certain organisations, company officers and certain individuals to engage in conduct that is negligent and constitutes a breach of a duty under the Act, and that causes the death of a worker or another person. Organisations, including body corporates, can be fined up to approximately $16.5 million, and individuals, including company officers, can face imprisonment terms of up to 20 years. In addition, company officers can be fined up to approximately $1.6 million if a body corporate is guilty of workplace manslaughter and the contravention can be attributed to the officer for failing to take reasonable care.
The existing duties under the Act provide, amongst other things, that an employer is obliged to provide and maintain a safe working environment that is without risk to their employees’ health and safety, so far as it is reasonably practicable. For the purposes of the offence of workplace manslaughter, ‘negligent’ is defined as ‘a great falling short’ of the standard of care that a reasonable person would have exercised in the circumstances and that there was a high risk of death, serious injury or illness. Either an act or omission may give rise to the offence.
The offence of workplace manslaughter does not impose any new duties on employers. However, the consequences for non-compliance with the existing duties are harsher if the breach is negligent and results in a workplace fatality.
