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New workplace manslaughter charges mean long jail terms and heavy fines

Posted by Pia Abrahams on

Under new Victorian OHS law introduced on 1 July 2020, workplace deaths can now result in serious manslaughter charges.

Victorian Attorney-General Jill Hennessy said employers across the state were now on notice.

“Employers need to understand that if their negligence costs someone their life, they will be prosecuted and may go to jail,” she said.

As Australia’s trusted workplace first aid specialist, everyone at Brenniston welcomes WorkSafe Victoria’s new workplace manslaughter legislation. 

The Occupational Health and Safety Act 2004 (OHS Act) has been amended to include the new workplace manslaughter laws. The two main reasons for the new legislation are

1. to prevent workplace deaths

2. to send a message to the community that compliance with occupational health and safety laws is critical; if you do not comply with your OHS obligations and somebody dies as a result of your non-compliance, you can be prosecuted for a significant criminal offence, and the penalties are severe.

Penalties include fines of up to $16.5 million for body corporates and up to 25-year jail terms for individuals whose neglect of their workplace health and safety duties result in the death of a worker, or a workplace death. Previously, an individual could serve jail time for up to five years or pay a maximum fine of around $297,000, or $3.3million for a company.

Moreover, the criteria that define workplace death have been expanded. Workplace death now includes:

  • being killed on the road while working
  • death from an industrial illness like silicosis
  • death from a criminal act perpetrated at the workplace, and
  • suicide attributable to a workplace health and safety failure, such as bullying.

This expanded definition of workplace death brings recognition to every person who dies from a workplace-related cause, highlighting the importance of workplace health and safety, and re-enforcing to Victorian employers that it must be their number one priority.

Under the expanded definition there have been 41 deaths in Victoria in 2020. Access to immediate and effective workplace first aid can mean the difference between life and death.

The elements of a 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
  • If the person charged is a natural person (ie. an individual under the law) they must have acted consciously and voluntarily when breaching the duty owed

The new workplace manslaughter laws are aimed at those people responsible for, and obliged to maintain, a safe working environment for their employees; who should and must comply with the obligations under the OHS Act and who are in positions of power and can affect change in safe work culture.

The amendments to the OHS Act refer to a ‘person’ or ‘officers’, which include self-employed people, directors and/or secretaries of companies, partners of a partnership, trustees of the trust – those who make significant decisions in the running of a company.

Employees and volunteers of a company are exempt from the industrial manslaughter Act as they do not have the management and control of the workplace, however an employee can still be prosecuted for breaching existing duties under the Act.

 If you are unsure of your duties under the Occupational Health and Safety Act 2004, a broad summation requires employers to:

  • Provide for and maintain the health and safety conditions of their employees
  • Ensure the workplace is always safe and there are no risks to health and safety
  • Take reasonably practicable steps to mitigate risks, knowing what risks arise
  • Monitor risk mitigation so that if work practices change, there is consideration of the health and safety implications not just on-site, but to passers-by and other occupants of the building

Industrial manslaughter isn’t a stand-alone crime – a person may well be investigated and charged with other offences alongside that, if applicable. But industrial manslaughter places a significantly higher penalty on breaching workplace health and safety duties, as a deterrent to negligence and complacency.

Compliance with occupational health and safety laws is critical. The new offence of workplace manslaughter extends the penalities for breaches of existing workplace safety compliance duties. In fact, it’s designed to align with the manslaughter provisions in the Crimes Act. 

There are no additional duties for Victorian employers, just tougher penalties on serious breaches of the current legislation. If you are currently compliant with OHS laws you will still be compliant with them under the new legislation.

Workplace first aid and workplace first aid kits are essential to occupational health and safety compliance. Workplace first aid compliance is critical. The provision of immediate and effective workplace first aid to injured or ill workers can reduce the severity of their condition. In many cases, immediate application of workplace first aid can mean the difference between life and death.

All employers have a duty to provide workplace first aid kits and supplies, access to first aid equipment, facilities for administering first aid, training for first aiders and access to first aiders.

But workplace first aid compliance is complex and difficult to ensure, given that requirements vary according to workplace risks and hazards. To properly assess and respond to these risks and hazards, and therefore ensure workplace first aid compliance, employers need to assess:

  • The nature of the work being carried out
  • The size, nature and location of the workplace
  • The nature of the hazards that exist at the workplace
  • The number and composition of the workers, contractors and volunteers there

Additionally, by their very nature, workplace first aid supplies are consumables, which means they carry expiry dates, are affected by environmental factors in storage and, in a busy or hazardous environment, are used on a daily basis and therefore may not always be fully stocked.

At Brenniston we offer workplace first aid audits to help ensure you’re fully workplace first aid compliant.

The changes to Victorian OHS legislation present all employers and organisations with a valuable opportunity to scrutinise their businesses and work processes.

Do you understand your health and safety obligations? Have you assessed your workplace risks and hazards? How are you are mitigating the risks and can anything can be done to improve the safety of your employees?

In regards to workplace first aid compliance, employers and organisation would do well to consider:

  • Are workplace first aid kits in working order, ie. Are they clean? Permanently unlocked?
  • Do the contents of the workplace first aid kits address the workplace hazards, ie. Are there sufficient burn treatments for a restaurant? Bandages and hot/cold packs in a sports centre’s workplace first aid kit?
  • Does the workplace first aid kit container suit the type of workplace, ie. Is it waterproof or dustproof? Is it a soft case for a vehicle? Wall-mounted in a workshop or portable for a large warehouse?
  • Are the contents of the workplace first aid kits regularly audited for product tampering, expiry dates and supply levels?

Brenniston’s Workplace Safety Supply range includes:

Or simply download the Brenniston Worksite Safety Quote Form: a quick and easy safety shopping list for your construction, building and field work sites.

Remember, under the new Victorian workplace manslaughter laws, complacency will not be tolerated when it comes to an employer’s duty to its workers.

At Brenniston, we wholeheartedly support this significant change to Victorian OHS legislation. It highlights the importance of workplace health and safety compliance, and gives voice to the families of deceased workers who were consulted, supported and highly valued in the formulation of the new workplace manslaughter laws.

Learn more on WorkSafe Victoria’s website: Who can be charged with workplace manslaughter?