On 26 November 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 was passed in the Victorian Parliament, establishing workplace manslaughter as a criminal offence under the Occupational Health and Safety Act 2004 (OHS Act). The law will come into effect before July 2020.
Liability for workplace manslaughter will arise where an employer or an officer of a business, by act or omission, negligently breaches any duty under the OHS Act, where that breach results in the death of another person.
Conduct will be considered to be negligent under the OHS Act where 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.
The maximum penalty for employers that negligently cause a workplace death will now be $16,522,000, while an individual or officer who negligently causes a work-related death in Victoria, could be jailed for up to 20 years. This is in addition to any other charges which may be brought by WorkSafe under the OHS Act.
While these new provisions of the OHS Act have been met with concern by many employers, it is apparent that they are intended to cover the most serious and negligent breaches of occupational health and safety – that is, where the death of the worker would already have given rise to serious offences under the OHS Act.
In particular, the Explanatory Memorandum emphasised that ‘the mere fact that an organisation’s or officer’s conduct contributed causally to the death, or was a necessary cause of it, is not sufficient. It must have contributed significantly to the death or have been a substantial and operating cause.’
The introduction of this new offence of workplace manslaughter is a crucial and timely reminder that employers all around Australia should regularly review the health and safety systems in their workplaces to safeguard their employees.
It is disappointing that the legislation applies only to employers and officers and does not extend to employees when they contribute to fatalities of co-workers.