Information current at date of publication: 15 July 2020.
The average reading time for this Alert is 5 minutes.
The Victorian Government has introduced substantial new penalties for work-related deaths, with the changes to the Occupational Health and Safety Act 2004 (Vic) coming into effect on 1 July 2020. The changes create a new offence, which is capable of applying to businesses and their officers (for example chief executive officers, company directors and board members). It does not apply to other employees or volunteers.
While the new laws apply to all business across Victoria, they are obviously more relevant to businesses where there is a real possibility that a safety failure will lead to a fatality. According to statistics published by SafeWork Australia, high risk industries such as transport accounted for approximately a quarter of all workplace fatalities across Australia in 2018 and again in 2019. Electricity, gas, water and waste services ranked 5th highest by industry sector in 2018 with 2.0 deaths per 100,000 workers.
Accordingly, waste and resource recovery businesses and waste transport businesses need to be particularly conscious of safety laws.
The offence – workplace manslaughter
The new offence applies if a person engages in negligent conduct, and that conduct breaches an applicable safety duty, and the conduct also causes the death of a person. This means that there are three elements of the offence – a court would need to be satisfied of three things before making a finding of guilt:
- there was negligent conduct;
- there was a breach of an applicable safety duty; and
- the conduct and breach lead to the death of a person.
Negligent conduct is defined as conduct that involves a great falling short of the standard of care that a reasonable person would have taken where there is a high risk of death, serious injury or illness. This suggests that the offence will not apply in situations where a company has simply breached the Act – the level of contravention would need to be very significant.
Applicable safety duties include duties of:
- owners and occupiers of workplaces;
- designers of plant, buildings or structures;
- manufacturers of plant or substances;
- suppliers of plant or substances; and
- persons installing, erecting or commissioning plant.
Accordingly, the new offence is capable of applying not just to workplace deaths, but also to deaths of members of public, and potentially suicide arising from workplace bullying.
If a person is found guilty of an industrial manslaughter offence, in addition to a criminal conviction, potential penalties include fines up to $16.5 million for corporations, and 25 years’ imprisonment for individuals.
Case study – R v Brisbane Auto Recycling Pty Ltd & Ors  QDC 113
While obviously there have not yet been any prosecutions under the new provisions in Victoria, there are comparable laws in the Australian Capital Territory and Queensland, and on 11 June 2020 the Queensland District Court made the first conviction for industrial manslaughter offences in Australia. This decision may give us some guidance as to how a Victorian court may approach the new provisions.
Brisbane Auto Recycling (BAR), the defendant company, operated an auto wrecking business in Rocklea, Queensland. BAR was operated by two directors and had been in operation for approximately three years when on 17 May 2019, an employee was crushed by a reversing forklift, and died as a result of his injuries. BAR was charged with a breach of section 34C of the Work Health and Safety Act 2011 (Qld).
Under section 34C, a person will be guilty of an offence if a worker dies in the course of carrying out work for the person, and the person is negligent about causing the death. The maximum penalty under section 34C for a body corporate is $13,345,000.
The directors of BAR were also charged under section 31 of the Act, which relates to reckless conduct. All three defendants pleaded guilty.
The Court imposed a penalty of $3,000,000 on BAR, while its directors were each sentenced to 10 months imprisonment, wholly suspended for 20 months. In mitigation, the Court noted that the directors were Afghani immigrants, who may have been deported if they had received a sentence of 12 months’ imprisonment or more. Further, they had no history of prior offending and were the sole providers for their spouses and children who remained in Afghanistan. The Court noted that the plea of guilty was a mitigating factor, though it did not specify what the penalty would have been without the guilty plea.
While the Queensland legislation is expressed in different terms from the Victorian legislation, we would expect that the facts in this case would also have contravened the Victorian workplace manslaughter laws. The worker’s death arose from a breach of a safety duty, and BAR’s conduct clearly was a great falling short of the standard of care, giving rise to a high risk of death or serious injury.
What does this mean?
The changes to the Act have not created or extended existing safety duties, however the increased penalties create a significant incentive for businesses to ensure that they provide safe environments to employees, contractors and members of the public. It is more important than ever for company directors and officers in high risk industries such as the waste and resource recovery sector to ensure that they have proper safety systems in place.
What do you need to do?
All businesses should consider reviewing and updating their occupational health and safety policies and processes to ensure they are meeting their obligations under the Occupational Health and Safety Act. Directors, board members and other officers should ensure that they take safety considerations seriously when making business decisions. This is no different from what they should already have been doing, however the arrival of the Amendment serves as a timely reminder for all businesses and officers.
If you need assistance understanding or interpreting your rights and obligations, or with preparing policies, please contact the Russell Kennedy Workplace Relations, Employment and Safety team.
Russell Kennedy principal Anthony Massaro can provide a training session to your Board on Workplace Manslaughter and Officers’ Duties.
To arrange a training session or to find out more, please contact Anthony Massaro via email here. If you would like to keep in touch with Alerts and insights from our expert Waste and Resource Recovery team, you can subscribe to our mailing list here.
The information contained in this Alert is intended as general commentary only and should not be regarded as legal advice. Should you require specific advice on the topics discussed, please contact the firm directly.