Victoria’s new workplace manslaughter laws: it’s all in the messaging

Victoria’s new workplace manslaughter laws: it’s all in the messaging
Dr Eric L Windholz MONASH UNIVERSITY | Employment Law Bulletin

On 1 July 2020, Victoria became the fourth Australian jurisdiction to introduce workplace manslaughter laws. The laws are a fulfilment of an Andrews Labor Government election commitment and follow a sustained union campaign.

The laws create no new occupational health and safety (OHS) duties — if you were complying with your OHS responsibilities before their introduction, you will still be in compliance with them after their introduction.

What the laws do is create new and severe penalties if certain existing OHS duties are breached in circumstances involving negligent conduct that causes a person’s death.

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The rationale for Victoria’s new workplace manslaughter laws

TheWorkplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) (the Act) introduces a new Pt 5A entitled “Workplace manslaughter” into Occupational Health and Safety Act 2004 (Vic) (OHS Act). The objects of the new Part are set out in s 39A, as follows:

(a) to prevent workplace deaths; and
(b) to deter persons who owe certain duties under Part 3 from breaching those duties; and
(c) to reflect the severity of conduct that places life at risk in the workplace.

Idea behind Victoria’s new workplace manslaughter laws

The idea behind the laws is that they will be the impetus for employers and other duty-holders to review their workplace safety arrangements to ensure they are compliant and, if they are unsure or hesitant about implementing a safety measure to address a workplace risk (possibly because of its cost), the magnitude of the new penalties (and the social stigma and reputational damage that will attach to them) will sway the cost-benefit analysis in favour of acting to eliminate or mitigate the risk. Thus, the new laws are designed not only to prevent workplace deaths, but to improve work place health and safety generally. This is their functional purpose.

Expressive purpose behind Victoria’s new workplace manslaughter laws

The new laws also have an expressive purpose. The new laws give voice to the frustration felt within government, the union movement, the community and most acutely, the families of persons killed at work, that the penalties imposed on duty-holders whose negligence has caused a workplace death have been woefully inadequate. As Attorney-General Hennessy said in her Second Reading Speech on the Bill that would become the Act, it reflects the “feeling of injustice when negligence goes unpunished” and “sends a strong message to employers that putting lives at risk in the workplace will not be tolerated”.3

Workplace Incidents Consultative Committee

In this regard, the new Act also creates a Workplace Incidents Consultative Committee (the Committee) to provide a voice to injured workers and the families of victims of workplace fatalities and serious injuries. The Committee will provide advice to the Minister about:

• how best to support the needs of seriously injured workers, their families, and the families of persons killed at work and
• the development, review and improvement of policies, practices, strategies and systems relating to OHS generally, and workplace incidents involving death or serious injury or illness in particular.

The creation of the Committee sometimes is overlooked in discussion on the new laws. However, its creation and presence may have a significant impact on how WorkSafe Victoria operationalises and enforces the new laws, something to which the article will turn to in Part 3.

The new workplace manslaughter laws – offense, penalties and consequences

Workplace manslaughter offence The offence is found in the new s 39G of the Act. It provides that a “person” or an “officer of an applicable entity” (who is not a volunteer) must not engage in conduct that:

(a) is negligent; and
(b) constitutes a breach of an applicable duty that the entity owes to another person; and
(c) causes the death of that other person.

Penalties

The penalties that apply to a breach are significant. In the case of a natural person, 25 years’ imprisonment; and in the case of a body corporate, 100,000 penalty units which currently equate to $16.5 million. This is a significant increase on the highest penalties previously available under the OHS Act, being 5 years’ imprisonment for individuals convicted of reckless endangerment, and a maximum fine for corporations of $3,304,400 (20,000 penalty units).

There also is the greater social stigma and reputational damage that attaches to being convicted of manslaughter, as opposed to a breach of duty of care under the OHS Act.

Who can be charged under the new workplace laws in Victoria, and what risks are soon to be faced by business duty-holders?

Breach of applicable duty and negligent causation are two key factors discussed in the article.

Firstly, the offence only applies to a breach of an “applicable duty”. That is, establishing a breach of an existing duty under the OHS Act is an element of the offence.

Secondly, for liability to attach, the conduct breaching the duty must be negligent and must cause the death of another person.

These details are unpacked by Dr Eric L Windholz of Monash University in the article: Victoria’s new workplace manslaughter laws: it’s all in the messaging, inside a recent edition of Employment Law Bulletin.

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