– section 39G of the Occupational Health and Safety Act 2004 (Vic)
On 1 July 2020, laws come into effect in Victoria creating the new criminal offence of workplace manslaughter. For the first time, Victorian employers can be held criminally liable where it is demonstrated that their negligent conduct caused or significantly contributed to a workplace death.
Through amendments to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) by the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic), the new offence of workplace manslaughter has the stated aim to:
- prevent workplace deaths;
- deter people and organisations who owe specific duties in the workplace from breaching those duties; and
- reflect the severity of conduct that places a life at risk in the workplace.
Who can be charged?
Employers’ duties are extensive and set out in detail in the OHS Act. As in commonly understood, duties include for example that:
- employers provide and maintain a safe working environment for employees;
- employers monitor the health of employees and working conditions;
- persons with the management or control of a workplace ensure that the workplace and the means of entering and leaving it are safe.
The new offence of workplace manslaughter applies to organisations and officers (individuals) who hold the existing duties under the OHS Act. The laws do not apply to an employee or volunteer of an organisation.
- registered companies;
- incorporated associations;
- unincorporated bodies and unincorporated associations;
- trustee of a trust;
- partnerships; and
- government entities.
An officer is an individual who holds a position of power and/or authority in an organisation, including a director or secretary of a corporation, a partner in a partnership, and an office holder of an unincorporated association. Section 9 of the Corporations Act (Clth) 2001 defines an ‘officer’ to include a person:
- who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business; or
- who has the capacity to affect significantly the entity’s financial standing; or
- in accordance with whose instructions or wishes the directors of a corporation are accustomed to act.
Negligence and Causation
To prove the offence of workplace manslaughter, the employer’s alleged act or omission must be negligent.
Section 39E of the OHS Act defines negligent conduct as 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, involving a high risk of death, serious injury or serious illness.
With respect to a body corporate’s conduct, the standard to be applied is the standard of care that would have been taken by a reasonable body corporate in the circumstances in which the conduct was engaged in.
It must also be proved that the alleged negligent act or omission by the employer caused the death.
The test for whether the employer’s negligence caused the death will be the existing common law test for causation; that an ordinary person would view it as the cause of death as a matter of common sense.
This means that it must be proved that the employer’s negligent act or omission:
- significantly contributed to the death; or
- was the substantial and operating cause of it.
The charge of workplace manslaughter will apply to offences committed in Victoria from 1 July 2020. The laws are not retrospective. There is no statutory limitation period for the commencement of a prosecution.
It is an indictable offence and cannot be determined summarily.
Suspected offences will be investigated by WorkSafe Victoria’s new Fatalities Investigations team using existing powers under the OHS Act. It is anticipated that WorkSafe will maintain the initial conduct of a matter until trial stage, when the Office of Public Prosecutions will take carriage of a prosecution.
With the new law in force and significant penalties applying on conviction, if it was not already, the incentive must now be even greater for employers to create and maintain a safe working environment.
Possible defences to an Workplace Manslaughter charge
- Somebody else assaulted the victim.
- You kicked someone or used a weapon in self defence.
There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.
Questions in cases like this
- What actually happened? Was there a case of mistaken identity
- Assaults often happen in heated situations witnesses memories of the true events are often wrong.
- How can they prove the assault and aggravated circumstances?
- Were you acting in self defence?
In order to both encourage and enforce a culture of physical and mental safety in the workplace, the new laws introduce significant penalties for breaching existing duties under the OHS Act.
If convicted of workplace manslaughter, the maximum penalty for an individual is equivalent to the Crimes Act 1958 (Vic) offence of manslaughter – 25 years imprisonment. The maximum penalty for a body corporate is a fine of $16.5 million.
What is the legal definition of Aggravated Assault?
There are 2 kinds of Aggravated Assault in Victoria.
The first is when either a female, or a male under the age of 14, is assaulted. If a Magistrate thinks that the punishment for assault is too lenient in the circumstances, the Magistrate may hold that the assault is aggravated.
The Second kind of Aggravated Assault is assault done by more than one person, or by kicking or using a weapon.
The section that covers this offence is section 24 of the Summary Offences Act 1966.
Elements of the offence
An accused may be found guilty of Aggravated Assault if the Prosecution prove the following elements beyond reasonable doubt.
The accused who was in company with any other person or persons assaulted another person; or
The accused assaulted another person by kicking or by using any weapon; or
The accused committed assault or battery of such an aggravated nature (in the opinion of the court) that it cannot sufficiently be punished under the section for Common Assault.