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Industrial Manslaughter Now a Crime in Vic – Are you Ready?

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Industrial Manslaughter now a Crime in Vic – Are you Ready?

Victoria has become the third Australian jurisdiction with a specific industrial manslaughter offence, joining Queensland and the ACT.

A recent Bill passed in the Victorian Parliament has established the criminal offence, with far-reaching implications for employers.

The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (‘the Bill’) was passed in the Victorian Parliament on 26 November 2019. The Bill amends the Occupational Health and Safety Act 2004 (Vic) (‘the OHS Act’), through the insertion of a new Part 5A. The objectives of this new Part are set out as follows:

  • ‘to prevent workplace deaths;
  • to deter persons who owe certain duties under Part 3 of the OHS Act from breaching those duties; and
  • to reflect the severity of conduct that places life at risk in the workplace.’

The Bill is expected to come into effect on a date to be proclaimed, or at the latest, on 1 July 2020.

Why was the Bill Introduced?

The Minister for Workplace Safety, Jill Hennessy, in her Second Reading Speech, noted that up to 30 people are killed at work every year in Victoria. She emphasised that “the proposed laws send a clear message to employers that putting people’s lives at risk in the workplace will not be tolerated.” Further, it was intended that the Bill would overcome the gap in the common law, which makes it difficult for a company to be held criminally liable.

When would the offence apply?

As per Section 39G of the Bill, the offence of industrial manslaughter would apply in the following circumstances:

  1. The accused is a person who is not a volunteer, or is an officer of a body corporate, unincorporated body, or partnership;
  2. The accused owed the victim a duty of care under Part 3 of the OHS Act;
  3. The accused’s conduct was negligent;
  4. The conduct breached the relevant duty of care owed to the victim; and
  5. That conduct caused the death of the victim.

Who can be held liable?

Entities such as corporate bodies or unincorporated bodies or associations, self-employed persons, as well as officers of an entity may held liable for the offence.  Volunteers cannot be held liable.

The definition of ‘officer’ under the OHS Act is the definition under the Corporations Act 2001 (Cth). This includes those individuals who are directors or secretaries of an entity; those who make or participate in decisions that impact the whole, or a substantial part of the business of the entity; or those who have the capacity to significantly impact the entity’s financial standing.

Negligence

Conduct is considered to be negligent under the Bill where it significantly falls short of the standard of care that a reasonable person would have taken in the circumstances; and it involves a high risk of death, serious injury or serious illness.

Causation

The common law test of causation applies to conduct which causes the death of an individual. As set out in the Explanatory Memorandum of the Bill, the accused’s breach of duty of care must be such that an ordinary person would regard it, as a matter of common sense, to be the cause of the death. Significantly, the Bill also covers conduct which causes an illness or injury in an individual (including a psychological one), that subsequently leads to their death. This is likely to have implications for incidents of bullying at the workplace, if they are found to have caused mental illnesses or injuries leading to death.

Workplace Incidents Consultative Committee

The Bill also establishes a Workplace Incidents Consultative Committee, the role of which is to provide advice and recommendations to the Minister of Workplace Safety about the needs of individuals affected by such incidents at the workplace, as well as the development of relevant policies and practices.

Penalty

The maximum penalty for industrial manslaughter is imprisonment for 20 years for individuals, or a fine of $16.5 million for a body corporate. An individual officer of an entity (including both corporate and unincorporated bodies) can also be fined up to $1.65 million if they are found responsible for the offence.

There is no limitation period for bringing a claim in an Industrial Manslaughter matter. As per Section 5(3) of the Bill, “a proceeding for a workplace manslaughter offence may be brought at any time.”

What should Employers do?

Employers should ensure that they have a Workplace Health and Safety program and reporting policy in place, which clearly sets out the standards to be adhered to. Further, it is essential to have a comprehensive monitoring system in place to ensure compliance across the organisation.

Employers must take care to not only address physical risks, but also risks of psychological injury to employees (such as from incidents of bullying).

If you wish to learn more about any of the above, please contact Colin Broadbent on (03) 9604 9400.

Disclaimer: This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

 

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