Industrial Manslaughter - what you need to know

We all take it for granted that we will go home at the end of a long work day.  We might kick off the shoes and have a beer or get sweaty at the gym or hang out with the kids – regardless, we all make plans for what we will do after work finishes for the day.  But the stats are there to show us that some workplaces are inherently more dangerous than others given the sheer nature of the work or sadly, through neglect or deliberate disregard by employers.  There is significant legislation around workplace safety however the Victorian Government is ramping things up come July this year – so let’s take a look at what you need to know….

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Workplace Manslaughter – the What
The change is actually an amendment to the Occupational Health and Safety Act 2004 (Vic) and it creates two new offences that relate to ‘workplace manslaughter’.  
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.

Workplace Manslaughter – the Who
The laws will apply to all employers, those who are self-employed and officers of employers (e.g. CEO’s, company directors and board members).  Additionally, it applies to designers, manufacturers and suppliers of plant, equipment, buildings and other structures.  

Workplace Manslaughter – the When
For industrial manslaughter charges to be upheld in court, three factors would need to be satisfied:

• 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.

Workplace Manslaughter – the Why
Despite having Occupational Health and Safety provisions already enshrined in law, we still continue to have workplace deaths that could – and should – have been avoided with a little more thought and the enactment of common sense and/or legislated safety protocols.  With this amendment, the Victorian Government are looking to create a significant incentive for employers to ensure that all workplaces provide a safe environment for all employees.  

Penalties
The Amendment does not change the current duties of care that employers must provide but the introduction of significant fines and criminal convictions may be the incentive that some require to clean up their safety processes and protect their employees.

In the event that 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).

This amendment and the sanctions that can be imposed reflect a movement that has already been occurred in the Northern Territory, Queensland and Australian Capital Territory with a Bill presented to parliament in Western Australia.  

Queensland shows the way
In October 2019, a recycling company and its directors were the first Queensland company to  face charges for industrial manslaughter following the introduction of industrial manslaughter amendments that came into effect two years prior.  The prosecution arises from a workplace fatality that occurred in May 2019 when a worker was killed after being struck by a reversing forklift.  If found guilty, the company could be fined up to $10 million for negligently causing the worker's death.  As well, two company directors have been charged with reckless conduct and could be fined up to $600,000 each or jailed for up to five years if convicted.  The decision is pending. 

What now?
At HR Staff n’ Stuff we take the safety and health of employees very seriously and threats of criminal convictions and major fines are not required to motivate us into ensuring everyone gets to go home and live life to the fullest after a day at work.  And we are fortunate enough to work with clients who have the same credo.  Nevertheless, it is important for us all to remain vigilant when it comes to the safety of our employees and to be across changes and updates in employment law.  

In considering what to do as this Amendment comes into being, you may need to review and update your occupational health and safety policies to ensure they are meeting all requirements of the Act.  Furthermore, any business decisions made by you as the owner, business leader or member of a company board must factor in any safety considerations before any action is taken.

Please contact the team at HR Staff n’ Stuff if you require any support in ensuring the necessary policies are best practice and reflect all legal obligations. 

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