Workplace Manslaughter Offences18 May 2020
The new Workplace Manslaughter Offences (Manslaughter Law) will soon commence in Victoria.
Under the Manslaughter Law companies and its officers may be guilty of workplace manslaughter if their ‘conduct’ causes a workplace death. The maximum penalty under the Manslaughter Law is $16.5 million for a body corporate and 20 years imprisonment for a natural person.
Volunteers are excluded from the Manslaughter Law.
How will the law operate in Victoria?
The objects of the Manslaughter Law are to make those who owe health and safety duties accountable and improve safety outcomes to prevent workplace death.
The Manslaughter Law will only apply if the following elements are met:
- a body corporate, an unincorporated body or association or a partnership, and government organisations and its officers breached their ‘applicable duties’ under the Occupational Health and Safety Act 2004 (OHSA); and
- the ‘conduct’ engaged in:
i. is negligent; and
ii. constitutes a breach of an applicable duty that the person owes to another person; and
iii. causes the death of that other person.
The conduct is negligent if it involves “a greater falling short of the care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in, and involves a high risk of death, or serious injury or serious illness…”
In addition, when determining whether a person’s conduct causes the death of another person the common law test for ‘causation’ will be applied. This means, the conduct of the company or its officers must have contributed “significantly” to the death or have a “substantial and operating cause”.
It is only after all these elements have been proven that a person may be found guilty of the Manslaughter Law offences.
What and who are not captured under the Manslaughter Law
The Manslaughter Law is not intended to capture a company’s conduct to be ‘negligent’ solely because an employee, its agent or officer acted contrary to the steps taken by or things provided by the company.
Ultimately, what a court may have regard to are the steps taken or the things provided by the company (or a person) to prevent or minimise the death from occurring.
Volunteers will be exempted from the operation of this law.
Prosecution may be brought at any time…and penalties
A proceeding for an offence under the Manslaughter Law may be brought at any time, this is a departure from the current limitation period of 2 years. The reason given for removing the 2 year limitation period for Manslaughter Law offences is to allow regulatory agencies sufficient time to investigate the cause of death and determine whether proceedings are appropriate to be commenced.
If a person is found guilty under the Manslaughter Law the maximum penalty is 20 years jail for a natural person and $16.5 million for a body corporate.
The significant penalties reflect the degree of consequences arising from the failure of a person who has ‘applicable duties’ under the OHSA to prevent workplace death.
How prepared is your organisation and officers
The OHSA is a risk-based legislation. This means, duty holders must ensure so far as is reasonably practicable that risks to health and safety are eliminated, or if this is not practicable, reduced to an acceptable level having regarding to the risks associated with the conduct of the operation of your organisation.
Therefore, compliance and ongoing auditing are key to ensuring that your systems and processes are appropriately responding to managing health and safety risks.
To prepare for the Manslaughter Law, your organisation and its officers must:
- Ensure that your safety management system is appropriate for the size and risks associated with the operation of your business.
- Ensure you review your systems of work and adjustments are made to them (if necessary) to address gaps.
- Ensure an appropriately qualified person independently assess and/or review your systems of work.
- Ensure training is provided targeting all levels of your organisation so there is an understanding of their responsibility to health and safety.
- Ensure your organisation has a robust contractor management system.
- Ensure officers of your organisation are provided with meaningful health and safety reporting, incorporating proactive strategies, trigger reporting (such as notifiable incidents), lag indicators and actions being taken to address gaps or improvements in health and safety systems.
- Ensure officers of your organisation adopt the ‘due diligence’ concept under the Work Health and Safety Laws.
For further information in relation to the above, contact our experienced Occupational Health & Safety Team by emailing firstname.lastname@example.org.