New Victorian Workplace Manslaughter Laws

New workplace manslaughter laws were introduced to prevent fatalities in the workplace and to hold to account organisations and their officers with the power and resources to improve safety.  The new laws also serve to act as a deterrent from breaching occupational health and safety duties. New offences have also been introduced for breaches of the Occupational Health & Safety Act 2004 that occur prior to 1 July, 2020 where such breaches causes death.   These laws will come into effect on 1 July 2020.

Importantly, the new laws provide for two new offences of workplace manslaughter:

1. The first office applies to organisations (including bodies corporate, partnerships, unincorporated bodies and unincorporated associations) and self-employed persons.
2. The second offence applies to officers of an applicable entity (that being one of the above-mentioned organisations)

In order to be prosecuted under the new offences the organisation’s or officer’s conduct must:

• Have been negligent;
• Constituted a breach of an applicable duty;
• Caused the death of another person – that is, the conduct must be such that an ordinary person would hold it, as a matter of common sense, to be a significant contributing cause of the death.

Workplace fatalities that occur from 1 July 2020 will be investigated by both WorkSafe and the Victorian Police. Depending on the circumstances, if someone passes away on or after 1 July 2020 but the workplace incident that causes the death occurred prior to 1 July 2020, the new workplace manslaughter laws may still apply.

Furthermore, if there is negligent conduct by an organisation such as an unsafe practice prior to the commencement of the new laws and it’s still in place after commencement of the new laws and results in a fatality on or after 1 July 2020, the organisation’s failure to address the unsafe practice after commencement is relevant conduct for the purposes of prosecution.

The new laws may also capture the following instances:

• Where negligent conduct has caused a person to develop a mental illness and that person later commits suicide;
• Where negligent conduct causes a person to develop an occupational disease and that disease significantly contributes to that person’s death.

If convicted of workplace manslaughter, an individual may face a maximum of 20 years imprisonment and a body corporate may face a fine of $16.5 million.

What would be considered negligent conduct?

The definition of negligent conduct under the new laws is based on the Victorian common law standard of criminal negligence.  The new section 39E of the Occupational Health and Safety Act 2004 defines conduct as negligent if it involves a great 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. This is intended to include occupational diseases which would be deemed a serious illness.

An organisation may be liable directly or indirectly. Further, a duty owed to another person may be explicit or implicit. For instance, the Explanatory Memorandum clarifies that the first offence allows for:

• direct liability of a body corporate (or other entity) where the organisation’s unwritten rules, policies, work practices or conduct implicitly authorised non-compliance, or failed to create a culture of compliance, with its duties, and a death resulted from this negligent conduct.
• indirect liability of a body corporate (or other entity) where the act(s) or omission(s) of individuals within the organisation would amount to negligent conduct of the organisation, regardless of whether the death occurred due to one person’s negligence or the aggregate negligence of multiple people, and regardless of whether a person of sufficient authority within the organisation is at fault.

The Explanatory Memorandum also clarifies that a body corporate that complies with its occupational health and safety obligations should not be captured by the new workplace manslaughter offence.  Also, the conduct by an employee, agent or officer is only to be imputed to a body corporate if the employee, agent or officer is acting within the actual or apparent scope of their employment or authority.

Who can be charged with workplace manslaughter?

Those persons, body corporates, unincorporated bodies/associations/partnerships and officers of these entities who owe applicable duties to ensure the health and safety of another person in the workplace can be charged with workplace manslaughter.  This may include:

• Directors, including shadow directors and secretaries of companies;
• Partners of a partnership or joint venture;
• The Trustee of a trust;
• Persons who participate in the making of decisions that affect a substantial part of the organisations business;
• Persons who have the capacity to affect significantly the organisations financial standing.

The Court may have regard to the following matters in determining whether an individual officer was negligent for the purpose of the offence of workplace manslaughter:

• What the officer knew about the matter concerned;
• The extent of the officer’s ability to make, or participate in the making of, decisions that affect the body corporate in relation to the matter concerned;
• Whether the contravention by the body corporate is also attributable to an act or omission of any other person; and
• Any other relevant matter.

Whilst the list of those who could be charged would generally not include employees who are not officers or volunteers (as they are viewed not to have a sufficient level of power or resources to improve safety standards), an employee may still be prosecuted under common law manslaughter where their conduct has been criminally negligent and resulted in a workplace fatality, or under other criminal or occupational health and safety laws.

It should also be noted that prosecutorial discretion is applicable and can be used to safeguard against prosecutions that are not in the public interest.