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Industrial Manslaughter - substantial new penalties for work related deaths

Libby Pallot, Walter MacCallum, Anthony Massaro, Ben Tallboys, Abbey Burns, Caitlin Walsh and Caitlin Meers

The Victorian Government has introduced substantial new penalties for work related deaths. The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Amendment) will amend the Occupational Health and Safety Act 2004 (Vic) and is likely to take effect from July 2020.

It will apply to employers, self-employed persons and officers of employers (for example chief executive officers, company directors and board members). It does not apply to other employees.

The laws create wide ranging powers and cover deaths caused by:

  • Mental injuries, including trauma from bullying or other abuse sustained while at work;
  • Accidents and illness caused by unsafe work practices; and
  • Deaths of members of the public as a result of an employer’s negligent conduct.

The Amendment does not just apply to the employer-employee relationship, but also applies to designers, manufacturers and suppliers of plant, equipment, buildings and other structures.

The offence

If charged with industrial manslaughter, a court would need to be satisfied of three factors before making a finding of guilt:

  • whether there was negligent conduct;
  • whether there was a breach of a safety duty; and
  • whether the conduct and breach lead to the death of a person.

Under the Amendment, 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 means that the Amendment sets a high bar for the sort of conduct that would be considered under this offence.

Penalties

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
  • 20 years imprisonment for individuals (for example, company directors).

On 4 February 2020 the Victorian Government announced that it would introduce the Crimes Amendment (Manslaughter and Related Offences) Bill 2020 to Parliament, to increase the maximum penalty for manslaughter from 20 years to 25 years. There is no indication at this stage when the Bill will be put before Parliament.

What does this mean?

The Amendment does not create or extend existing duties of care, however it increases penalties to create significant incentive for organisations to ensure that all workplaces provide safe environments to employees, contractors and members of the public.

What do you need to do?

All organisations 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 organisations 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.

If you would like to keep in touch with alerts and insights from our expert Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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