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Tougher New Occupational Health and Safety (OHS) Laws in Victoria for Workplace Manslaughter

Bigger Jail Sentences, Bigger Fines.

There has never been a more important time to make sure that you and your organisation are OHS compliant and trained with tougher new laws expected to come into effect in Victoria by 1st July 2020 at the latest. The proposed Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 (the WSLA Bill) will make amendments to the Occupational Health and Safety Act 2004 (OHS Act) to introduce a new criminal offence of workplace manslaughter.

Duty holders convicted of workplace manslaughter may face up to 20 years in jail for individuals with fines of up to $16.5 million.  Duty holders include employers, officer of employers, or self-employed persons where negligent conduct causes the death of an employee (including contractors) or member of the public.

Other duty holders who may be at risk of conviction include:

  • directors and secretaries of companies;
  • partners of a partnership or joint venture;
  • the trustee of a trust;
  • persons who participate in the making of decisions that affect a substantial part of the organisations business;
  • persons who have the capacity to significantly affect the organisation's financial standing.

Note that employees or volunteers are not at risk of conviction under the WSLA Bill.

For workplace manslaughter to apply, all of the following elements of the offence need to be proven:
the accused is a body corporate or a person who is not an employee or volunteer;

  • the accused owed the victim a duty of care pursuant to sections 21 to 24 or sections 26 to 31 of the OHS Act. This includes duties owed to employees, contractors and members of the public (applicable duties);
  • the accused breached that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or serious illness;
  • the act that breached the duty of care was committed consciously and voluntarily; and
  • the accused is a body corporate or a person who is not an employee or volunteer;
  • the accused's breach of the duty causes the victim's death.

WorkSafe Victoria has offered further guidance on these matters outlining that Workplace manslaughter may apply even when the death of the person occurs sometime after the relevant incident. For example, depending on the circumstances, if an employee develops an asbestos-related disease after an employer exposed them to asbestos without the use of adequate personal protective equipment.

WorkSafe Victoria has also offered examples of negligent conduct.  For example, not taking reasonable action to fix a dangerous situation, in circumstances where failing to do so causes a high risk of death, serious injury or serious illness. Further, it must be established that it was the accused's negligently criminal breach of the duty of care that caused the death. That is, his or her acts or omissions must have contributed significantly to the death or been a substantial and operative cause of it. The acts or omissions must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death.

The use of the phrase 'common sense' is interesting and is likely to be the focus of great debate on this topic. HAZCON has made enquiries to WorkSafe Victoria to see what further guidelines will be released to inform on this matter. A WorkSafe Victoria Position paper would be of great assistance on this topic.

To review the WSLA Bill visit the Victorian Legislation and Parliamentary Documents website www.legislation.vic.gov.au


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