The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (VIC) (Amending Act) introduces significant changes to Victoria's workplace manslaughter offences, with their soon to be new powers of imprisonment or significant fines for individuals and companies/associations found guilty of such conduct. The purported aim of the Amending Act is to prevent deaths at work.
The Amending Act was assented to on 3 December 2019 and will likely come into effect during the first half of 2020 (or by 1 July 2020 at the latest).
The Amending Act amends the Occupational Health and Safety Act 2004 (VIC) (OHS Act), inserting a part 5A – 'Voluntary Manslaughter' to provide for offences of workplace manslaughter and to provide for the establishment of the Workplace Incidents Consultative Committee.
What type of conduct do the changes apply to?
The amendments apply to "applicable duties" outlined in Part 3 of the OHS Act (s 21 to 32), except for those duties outlined in s 25 ("duties of employees") and a duty imposed by s 32 ("duty not to recklessly endanger persons at workplaces") on a person who is an employee, but not an officer, at the workplace. Accordingly, the duties include but are not limited to duties of employers to employees, duties of employers to monitor health and other conditions, duties of self-employed persons, and duties of persons who manage or control workplaces.
The amendments "seek to address the gap in the common law that makes it difficult for corporations to be held criminally liable"1 and it seeks to complement the existing criminal law which outlines certain circumstances where an employee is criminally negligent.
Who do these amendments apply to?
These amendments affect body corporates, unincorporated bodies or associations, and partnerships (or officers of these entities but not employees or volunteers).2
Importantly, the amendments apply to omissions to perform an act where the opportunity to perform the relevant conduct/act arose before the commencement of the amendments.3
What is the relevant test/threshold?
The 'Negligence' threshold involves acts or omissions (a failure to act) – which can include a failure of policies and procedures – and is predicated on the current common law in Victoria.
'Negligence' is defined at s 39E(1) of the Amending Act as conduct which involves "a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in" and a "high risk of death; or serious injury; or serious illness".
S 39E(2) provides additional guidance for determining whether a body corporate has engaged in negligence by stating, inter alia, that the standard to be applied is the "standard of care that would have been taken by a reasonable body corporate in the circumstances in which the conduct was engaged in".4
What are the penalties?
There are, of course, amendments that can be implemented from time to time across all areas of law which lack "bite behind the growl", either through design and/or implementation. On the face of things, it appears that these changes do not fall in this basket. Importantly, significant penalties apply for an entity or individual convicted of workplace manslaughter. They include a maximum of 20 years imprisonment for individuals5 and a maximum fine of $16.5 million for body corporates6.
As stated in the Second Reading Speech, "WorkSafe and Victoria Police will have the necessary powers and resources to be able to effectively investigate any conduct that may be subject to these offences from the moment the offences are in operation".
Defences will remain available to those charged, including self-defence and the defences of duress or sudden and extraordinary emergency.
Is there a time limit in which a workplace manslaughter offence can be brought?
In contrast to the two year time limit to bring prosecutions for occupational health and safety offences, there will be no time period in which the prosecution is able to bring the offences under the amending legislation. S 5 of the new Part 9A – 'Workplace Incidents Consultative Committee' – will amend s 132(2) to state "a proceeding for a workplace manslaughter offence may be brought at any time". There are of course evidentiary considerations relating to the effluxion of time which will inevitably arise if there is a significant gap between the relevant act or omission and a subsequent prosecution.
Time will tell as to how these amendments operate in a practical sense and how stringently alleged offences will be prosecuted, including when a prosecution is in the "public interest".
What is clear, though, is that these changes will significantly shift the terrain for those who have committed workplace manslaughter offences (both from an institutional and office holder perspective) and the victims of such offences. It will be particularly important for affected body corporates and unincorporated bodies/associations to closely analyse their own systems, practices, and procedures for preventing workplace accidents, and to consider any current scenarios within their own organisation/workplace which may potentially be likely to fall foul of these amendments once they are formally in effect.Footnotes
1Second Reading Speech, Minister for Local Government and the Minister for Small Business, Adam Somyurek, 19 November 2019.
2 Amending Act, s 39G(1)(c).
3 Amending Act, s 39C.
4 Amending Act, s 39E(2)(d).
5Amending Act, s 39G(1) and (2).
6 Amending Act, s 39G(2).