The Victorian Parliament has created Australia's highest safety fine and made Victoria the third Australian jurisdiction to make industrial manslaughter a criminal offence.
As the Workplace Safety Legislation Amendment (Industrial Manslaughter and Other Matters) Bill 2019 (Vic) will result in a much greater spotlight on compliance with existing OHS laws, as well as introducing a new particular offence of industrial manslaughter, you should start preparing now to avoid facing prosecution and unprecedented penalties.
And although the new laws will commence on a day to be proclaimed or 1 July 2020 at the latest, negligent conduct before the legislation commences may still be relevant for the purposes of prosecution if an organisation's omission to amend unsafe work policies causes a workplace fatality post-commencement.
Scope of new industrial manslaughter laws
The new industrial manslaughter laws have been added to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and will apply to organisations (including bodies corporate, partnerships, unincorporated bodies and unincorporated associations), self-employed persons as well as officers.
The new laws will attract the highest penalty in the OHS Act, introducing maximum fines of approx. $16.5m for employers and jail terms of up to 20 years and fines of up to $1.65m for officers whose actions or omissions:
- cause the death of a worker or member of the public;
- involve a breach of an OHS duty;
- were negligent.
The negligence standard is the criminal negligence standard and applies where there is 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.
Under the new laws, senior officers of a company, sole traders and partnerships could be separately liable (in addition to the employer) where they are negligent by failing to take reasonable steps on workplace safety to prevent fatalities, including managing mental injury that leads to suicide.
Preparing for industrial manslaughter laws
The legislation highlights a strong focus on organisations achieving a culture of compliance which we expect WorkSafe Victoria's investigations will target in relation to possible offences of industrial manslaughter. With this in mind, it is important for businesses that they ensure adequate OHS systems, instruction training and supervision, but also place a heavy focus on worker engagement and a strong safety culture.
To get ready for the new legislation and ensure you have a strong safety culture, the steps you should look at taking include:
- reviewing all the potential hazards and risks in the workplace, including mental health risks and ensuring that these are incorporated in the OHS approach;
- completing a formal review of all the safety systems and controls currently in place and ensure they are fully effective (including a mental health risk assessment and compliance plan);
- reviewing all existing policies including "unwritten practices" relating to health and safety;
- reviewing OHS leadership and culture to ensure that any alleged negligent conduct is not authorised or permitted by the company or culture;
- education and awareness for directors, senior officers and managers on the new legislation and offences;
- reviewing incident action plans and responses; and
- consider your insurance arrangements for your organisation and officers.