New workplace manslaughter laws in Victoria
2nd Jul 2020
On 1 July 2020 workplace manslaughter became a criminal offence in Victoria, with penalties of up to $16.5 million and 20 years’ jail.
Through the introduction of this new law, the Victorian Government aims to send ‘a message to employers that putting lives at risk in the workplace will not be tolerated’.
This law is not just hypothetical, as was demonstrated recently in R v Brisbane Auto Recycling Pty Ltd & Ors  QDC 113, where a business was prosecuted for a workplace fatality under Queensland’s workplace manslaughter provisions.
What is the new law?
The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 amends the existing Occupational Health and Safety Act 2004 (the OHS Act) to introduce the offence of workplace manslaughter and capture negligent conduct which causes the death of an employee or any other person.
Importantly, existing duties under the OHS Act remain in place and no new duties have been introduced. The new law has, however, significantly increased the severity of the consequences if a person was to be convicted of the offence.
Purpose of the new law
The purpose of criminalising workplace manslaughter is simple:
- To prevent workplace deaths; and
- To deter people who owe duties from breaching those duties; and
- To reflect the severity of conduct that endangers lives in the workplace.
Elements of the new law
A person will be guilty of workplace manslaughter if their conduct is:
- Negligent: the new s39E defines conduct as being negligent for the purpose of this offence if it involves ‘a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances’ and involves a ‘high risk of death; or serious injury; or serious illness’ (including occupational diseases). This essentially codifies the common law criminal negligence definition in Victoria; and
- A breach of an OHS Act duty: that the fatality arose from a breach of a duty owed under Part 3 of the OHS Act; and
- The cause of the death: the existing common law test for causation applies.
Who will the new law apply to?
The law applies to those who owe applicable duties under the existing provisions of Part 3 of the OHS Act. This includes a person, a body corporate, an unincorporated body or association, or a partnership, including government entities and officers of these entities.
An officer under the Corporations Act 2001 (Cth) includes directors, secretaries, and/or any other person who makes decisions that substantially affect the organisation’s business or financial standing.
The law does not apply to employees and volunteers. The Victorian Government considers that employees who are not officers do not have the sufficient level of control of a workplace or the resources to improve workplace safety.
What are the penalties?
If an individual is convicted of workplace manslaughter, the following penalties apply:
- A maximum term of 20 years’ imprisonment for individuals; and
- A maximum fine of $16.5 million for businesses.
Organisations should already be complying with their relevant duties under the OHS Act, but with these new laws in place, now is a better time than ever to review those duties and continually work towards improving safety practices.
For families impacted by workplace deaths, the Victorian Government has endorsed reforms which include the introduction of Family Liaison Officers and Agent Family Support Specialists. These services will provide, among other things, support for grieving families through the investigation and legal processes. Information about these services can be found here.
Sam Vasaiwalla is a Lawyer at Zaparas Lawyers in Melbourne, Victoria.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).