On 1 July 2020, workplace manslaughter laws came into effect in Victoria. While these new laws do not create additional duties, they do introduce tougher penalties for businesses and individual officers on existing duties under the OHS Act.
What does this mean for businesses operating in Victoria?
If you are already complying with your obligations under the OHS Act, and you continue to do so, you avoid workplace manslaughter. However, if you breach certain duties as a business or individual officer, and the breach involves negligent conduct and causes the death of another person who was owed the duty, the workplace offence can apply.
The elements of workplace manslaughter offence are:
the person charged must be a body corporate or a person who is not an employee or volunteer
they must have owed the victim a specified duty under the OHS Act
they breached the duty owed by negligent conduct
the breach of the duty caused the death of the victim, and
if the person charged is a natural person they must have acted consciously and voluntarily when breaching the duty owed.
What does negligent conduct look like?
A person or business’s conduct would be considered ‘negligent’ if it involves a significant deficiency in the standard of care that a reasonable person would have taken in the circumstances, and a high risk of death, serious injury or serious injury. It also includes an omission (failure to act).
What are the penalties associated with workplace manslaughter?
If convicted of workplace manslaughter, the following penalties apply (as at 1 July 2020):
a maximum of 25 years imprisonment for individuals; and
a maximum fine of $16.5 million for body corporates.
Is Victoria the only State with workplace manslaughter laws?
No. Victoria is not the first State to introduce these laws. Industrial manslaughter laws are currently in place in Queensland and the ACT and other States and Territories are looking to introduce similar laws.
Australia’s first prosecution under industrial manslaughter laws occurred in QLD this year. Two owners of a Brisbane wrecking yard were handed suspended jail terms over the death of a 58-year-old worker who was crushed between a reversing forklift and a truck. The company was fined $3 million [R v Brisbane Auto Recycling Pty Ltd & Ors  QDC 113].
WHS Health Check
These laws are a timely reminder for retailers to review and reassess health and safety risks in the workplace. Retailers should review the attitude and approach to health and safety in the workplace, and the effectiveness of their health and safety practices.
What is the attitude towards health and safety culture within your business?
Are you aware of your due diligence obligations?
Is there a specific plan in place around how your business is working to improve WHS?
When was the last time you reviewed the operational activities and identified those that are high-risk in your business?
Are there policies, procedures and practices in place to mitigate these risks?
How are WHS responsibilities communicated across the business?
What is your business doing to ensure the physical and psychological health of workers?
What is your safety reporting culture?
How are you measuring health and safety performance?
What is your organisation doing to continuously improve health and safety practices?