It is safe to say every employer’s worst nightmare is for one of their employees to die at work, let alone having to face a charge of workplace manslaughter.
Many employers spend considerable resources on creating a workplace that is not only safe for employees but provides an atmosphere in which positive relationships are fostered through teamwork and genuine collegiality. The death of an employee is a devastating event for any workplace, not to mention a cause of significant grief and trauma. Surely, every employer would do everything they possibly could to avoid such an occurrence, and also avoid workplace manslaughter charges.
However, every year in Australia employers confront this distressing reality. According to the fatality statistics published by Safe Work Australia, as at 16 July, 95 Australian workers have died at work in 2020.
In an effort to reduce the number of workplace deaths, the government has introduced a new offence, known as ‘workplace manslaughter’. It is included as a separate offence in the Occupational Health and Safety Act 2004 (Vic) (“the Act”) (at section 39G).
It is anticipated the existence of the offence of workplace manslaughter encourage employers to comply with existing occupational health and safety obligations (and thereby reduce fatalities) rather than requiring employers to comply with any new or additional obligations.
The offence will apply to deaths that occur after 1 July 2020 (and will not operate retrospectively). It places a very heavy burden on employers. Recently, the Victorian government has confirmed that employers will be at risk of prosecution for this offence if their staff die as a result of contracting COVID-19 at work. Employers must ensure they are fully informed about potential liabilities and penalties.
Who May Be Charged With Workplace Manslaughter?
Any organisation or officer who holds specified duties under the Act may be prosecuted for the offence. An officer is an individual at a high level of an organisation, with power, resources, and responsibilities for keeping the workplace safe.
- Bodies corporate (registered companies)
- Incorporated associations
- Statutory authorities
- Trustee of a trust
- Unincorporated bodies and unincorporated associations
- Government entities
- A director or secretary of a corporation
- 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 those instructions or wishes the directors of a corporation are accustomed to act
- A partner in a partnership
- An office holder of an unincorporated association
Volunteers and employees are excluded from liability for the offence (unless the employee is also an officer of the organisation), although employees must comply with existing duties under the Act and may be prosecuted for any other breaches.
For an organisation or individual to be held liable for the offence of workplace manslaughter:
- The person charged must be a body corporate or a person who is not an employee or volunteer;
- The person charged must have owed the victim a specified duty under the Act;
- The person breached the duty owed by negligent conduct; and
- The breach of the duty caused the death of the victim; further
- If the person charged is a ‘natural person’ they must have acted consciously and voluntarily when breaching the duty owed.
The test contained within the offence is based on criminal negligence. It is a high standard. How the test will apply will depend on the circumstances of each case.
Anyone with responsibilities under this Act must take note:
- The duties prescribed and contained within the Act must be complied with ‘so far as reasonably practicable’.
- Conduct may be considered ‘negligent’ if it involves a great falling short of the standard of care that a reasonable person would have taken in the circumstances, and a high risk of death, serious injury or serious illness.
- Negligent conduct also includes an omission, such as failing to adequately manage, control or supervise employees, or, failing to take reasonable action to fix a dangerous situation, where failing to do so causes a high risk of death, serious injury or serious illness.
- For negligent acts or omissions to have caused an offence, they must have contributed significantly to the death, or have been a substantial and operating cause of the death. It does not need to be the sole cause. The benchmark is whether the act or omission as exercised by an ordinary person as a matter of common sense may be considered to have caused the death.
- There are no time limits with respect to acts or omissions (think of situations where a person is exposed to substances like asbestos at work, and then that person dies because of illness suffered as a result of that workplace exposure years later).
Procedure and Penalties
Deaths that may be the subject of workplace or industrial manslaughter will be investigated by WorkSafe Victoria and Victoria Police. WorkSafe will have carriage of the matter until the matter proceeds to trial, at which time the Office of Public Prosecutions will assume responsibility for the prosecution.
The offence of workplace manslaughter must be dealt with by a trial before judge and jury in the Supreme Court of Victoria. A criminal trial is a high stakes adversarial situation which calls for specialised criminal defence expertise.
If convicted of workplace manslaughter, the following penalties apply:
- A maximum of 25 years imprisonment for individuals; and
- A maximum fine of 100,000 penalty units (presently to the value of about $16.5 million) for body corporates.
Do Tough Laws Equal Safe Workplaces?
If you are familiar with the phrase “carrot and stick” as a metaphor to induce desired behaviour… this new offence is definitely a “stick”. Workplace manslaughter is one of the most serious criminal offences that may be prosecuted in Victoria. The possible consequences are very severe.
The concept the government is implementing is not new, that tough laws will lead to safe workplaces, just as tough laws are said to be designed to keep our community safe. Yet whether the threat of criminal sanction will be effective in reducing workplace deaths remains to be seen. One thing is for certain, now is the time for those in senior roles to be reviewing existing obligations pursuant to the Occupational Health and Safety Act 2004 (Vic) and taking steps to maintain satisfactory compliance. Proactive initiative and an audit of current practices are advisable. A safe and compliant workplace is unlikely to be at risk of prosecution for this offence.