The Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 passed Parliament in November 2019 and comes in to place on the 1st July 2020.
There are no additional duties required by duty holders, however the consequence for not meeting current duties under the Victorian OHS Act 2004 have been significantly increased. Therefore, if your business is currently compliant with the OHS Act 2004, you have nothing to worry about. New consequences include jail terms of 20 years (which were previously capped at 5 years) for individuals and fines up to $297,000 and for Corporations fines up to $16.5 Million dollars.
An officer can be convicted if criminally negligent. That being, a reasonable person would not have acted in the way the officer did given the circumstances, and this negligence contributed to the cause of death. With a given fatality, there could potentially be more than one officer prosecuted and possibly from more than one entity. Negligence and more seriously recklessness can both be part of a workplace manslaughter case.
As section 25 of the OHS Act (employee duties) is not an applicable section for the Workplace Manslaughter provision, employees and volunteers are exempt. Health and Safety Representatives are also basically exempt, unless they are also defined as officers.
Who are the officers?
Officers are defined in the Corporations Act as Directors, Secretaries, Partners, Trustees, and persons in control of the workplace or those making significant decisions. Basically, it is targeting those persons in the position of power within a business.
A few quick facts that were mentioned
- There is no time limit for prosecution for Workplace Manslaughter.
- Working from home is considered as part of the workplace as is working in a vehicle. The workplace is any place where work is being performed.
- Officers cannot delegate their duties.
- Labour hire employers cannot contract out their employer duties, however the host employer must also provide a safe workplace.
- These cases cannot be tried in Magistrates Course, but would be tried in Supreme Court due to gravity of offence.
- A fatality in the workplace would generally be managed by police with assistance by WorkSafe inspectors. Police would prepare a brief for the coroner.
- During an investigation anyone has a right to not answer (either police or WorkSafe) questions if they feel they may self-incriminate.
- Deaths relating to mental health, bullying or suicide could result in workplace manslaughter charges.
- Covid 19 workplace deaths were discussed. Like with all workplace deaths, employers should be aware of the risk and the methods of preventing the risk, and should have appropriate preventative and response measures in place.
- If the fatality involves a visitor to the workplace, a workplace manslaughter charge could still occur.
- In theory, persons who manufacture equipment that is not safe could also be prosecuted.
How do we check we are compliant?
- Regular monitoring
- Understand our risks and how to best mitigate them
- Consider all tasks and work environments you manage
- Know what Industry best practice is in relation to your business, use the WorkSafe website for guidance
- Continually review risks and review and revise control measures
If you think you might be an officer, how can you become more informed and knowledgeable about your obligations?
OHS&HR Management Systems has developed an online course specifically for officers – OHS Due Diligence for Officers – Victoria . It would take you a couple of hours to complete, and will provide you with some evidence that you are taking OHS seriously. Click here for information http://safetyinduct.com.au/course/index.php?categoryid=2
WorkSafe Victoria Information about Workplace Manslaughter https://www.worksafe.vic.gov.au/victorias-new-workplace-manslaughter-offences