The Victorian Government has undertaken to amend the Occupational Health and Safety Act 2004 (Vic) (Vic OHS Act) to provide for the criminal offence of industrial manslaughter.
An industrial manslaughter offence would attach criminal responsibility to negligent conduct by the employer or a director or officer of the employer that causes death to a worker. Industrial manslaughter offences exist in the Australian Capital Territory (since 2003) and Queensland (since 2018). NSW, with the highest rate of workplace deaths in Australia, is still to announce a firm position on the issue.
A recent review of Work Health and Safety laws across Australia has recommended industrial manslaughter laws. Read our update about this here.
At this stage, we know very little about the proposed industrial manslaughter offence in Victoria. The Victorian Government has established a new Implementation Taskforce led by former Minister for Industrial Relations Natalie Hutchins, and comprising members from unions, business and victims’ families. It will be supported by a Workplace Fatalities and Serious Incidents Reference Group.
We know the offence will be introduced into the Vic OHS Act. This follows the course adopted in Queensland, but not in ACT where it lies in general criminal law legislation. This means WorkSafe will be responsible for investigation and prosecution.
It will be an offence of negligent conduct causing death of a worker, supplier, contractors, routine maintenance workers, site visitors and passers-by, customer, neighbour or member of the public. In Queensland, the offence only applies where there is the death of a worker.
Potential offenders will be employers and ‘individuals’. Will individuals be confined to directors or officers? Or will it include workers more generally? Probably the former.
The offence will apply to negligent conduct only i.e. conduct falling short of the standard of care that a reasonable person would be expected to exercise in the circumstances. It will not apply to conduct meeting the higher standard of recklessness i.e. where the accused knows their act or omission will or may place another person at risk of serious injury, but continues regardless. Criminal negligence requires a sufficient departure from the reasonable person standard as to warrant criminal sanction.
The penalties for industrial manslaughter will be significant. A maximum penalty of 20 years' imprisonment will apply for natural person offenders (same as for Queensland and ACT) and $16 million fine for corporate offenders.
In Victoria we already have the offence (s 32) of recklessly endangering persons at workplaces. This attracts a maximum penalty of five years’ imprisonment or $291,420 fine for individual offenders or $3.238m fine for corporate offenders.
Do we need the offence of industrial manslaughter?
Twenty-three people died in Victorian workplaces in 2018. Seven of these workers were under the age of 25. We have had 10 deaths on Victorian worksites so far in 2019. Community expectation is that if someone dies at work due to their employer’s gross negligence, they should be treated on the same basis as other persons who commit manslaughter offences.
An offence of industrial manslaughter will provide an incentive to businesses with poor practices to improve – and will be an effective deterrent and an appropriate punishment for corporations and individuals making high-level decisions within corporations.
The problem is the concept of industrial manslaughter is contrary to manner in which OHS is regulated by law.
Under the Vic OHS Act an employer is liable for failing to provide, as far as is reasonably practicable, a safe workplace (s 21). The offence of contravening this duty is a strict or absolute liability offence, qualified only by reasonable practicability. If in a workplace there is something that poses a risk to the health and safety of a person in or near that workplace, and there is something reasonably practicable that the person in charge of that workplace (the employer) can do to eliminate or control that risk, then the employer will commit a criminal offence if that thing is not done.
Unlike industrial manslaughter, the offence of contravening section 21 is committed regardless of:
Will industrial manslaughter laws detract from the appropriate focus of health and safety laws on the culpability of the offender rather than the outcome of the non-compliance?
Another problem is the application of a manslaughter offence to a corporate offender. How do you attribute a state of mind to a body corporate employer? How do you apply the reasonable person test to a body corporate? The Victorian parliament will seek to deal with these issues based on both domestic and international experience.
Preparing for the offence of industrial manslaughter: A checklist for Victorian employers
Review OHS management systems - Assuming the new Victorian provisions will open the door for organisational negligence to be established by aggregation of multiple failings of individuals and systems, employers should undertake a comprehensive review of the efficacy of its OHS management systems and the allocation of appropriate responsibility for the performance of those systems.
Review OHS leadership and culture - Assuming also that the existing imputed conduct provisions of the Vic OHS Act will allow the negligent conduct of an employee or agent to be attributed to the employer where that conduct is within the scope of the employee/agent’s authority, an employer needs to be able to show that the conduct was not authorised or permitted by its overall culture or organisation.
Due diligence for directors and officers – To protect themselves from personal liability, senior managers and directors will need be proactive and diligent in ensuring:
Review incident action plans - A safety incident resulting in a workplace death will – obviously – have even greater legal implications for both the organisation and its senior managers and board members. An employer will need a clear response plan for this kind of incident that will need support the potential liability of its officers as much as the organisation itself. Self-incrimination privilege will be a much more significant factor.
Review insurance and risk allocation - At the same time as the potential financial penalties are increasing in Victoria, a December 2018 report to Safe Work Australia has recommended a prohibition against insurance coverage for OHS fines. Employers needs to consider its insurance arrangements for its organisation and its officers. If an employer shares control of a workplace with other duty holders consideration has to be undertaken to risk allocation.
Author: Charles Power
Charles Power, Partner
T: +61 3 9321 9942
Benjamin Marshall, Partner
T: +61 3 9321 9864
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
Rachel Drew, Partner
T: +61 7 3135 0617
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Published by Charles Power