On November 26, 2019, Victorian Parliament passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019. The bill is expected to come into effect by 1 July 2020 at the latest. Under the bill, a business and its officers in Victoria may be found guilty of workplace manslaughter when negligent conduct causes a death in the workplace.
What constitutes workplace manslaughter in Victoria?
In Victoria, workplace manslaughter will apply when:
- The accused is a corporate body or an individual who is not an employee or volunteer;
- The accused engaged in negligent conduct and that conduct amounts to a breach of OHS duty of care;
- Their negligent conduct causes the victim’s death.
If a death occurs sometime after a relevant event – as in the case of the development of a chemical exposure-related disease due to the failure of the employer to provide adequate PPE, for instance – workplace manslaughter may still apply.
What constitutes negligent conduct?
The conduct of an organisation or individual is found to be negligent if there is a shortfall in the standard of reasonable care exercised in such situations involving a high risk of serious injury, illness or death.
Examples of negligent conduct could be:
- Inadequate management or supervision of employees
- Failure to take reasonable action to repair a hazardous situation
The negligent conduct must be established to have been a significant contributor to, or a substantial and operative cause of, a person’s death.
Who can be charged with workplace manslaughter in Victoria?
Both businesses and officers can be charged with workplace manslaughter in Victoria.
Those who owe applicable duties to guarantee the health and safety of workers can be charged with workplace manslaughter. This includes an individual; a corporate or unincorporated body; association or partnership; and, government entities and their officers. However, this excludes volunteers and employees.
In some cases, any person who is considered an officer of an organisation under the Corporations Act 2001 may be charged if their organisation owes applicable duties, including directors and secretaries; partners of a partnership or joint venture; trustee of a trust; decision-makers that affect a significant part of the business; and, individuals who have the capacity to significantly affect the organisation’s financial standing.
Organisations found guilty of workplace manslaughter could face up to AUD16.5 million in fines. Meanwhile, officers of an organisation and sole traders (not a volunteer) could face up to 20 years in jail.
What can we do to avoid being charged with Workplace Manslaughter?
The most obvious answer to this question is to ensure that no fatality occurs in the course of your operations; however, that is easier said than done. It is important that both your organisation and those in leadership prioritise work health and safety by understanding the risks in your operations, ensure controls are in place and that they are effectively applied.
In the case of businesses that store, handle, use and transport chemical products, it is recommended that the following are strictly observed and implemented:
- Identify chemical hazards in the workplace – Chemicals are present in most, if not all, businesses – from seemingly innocuous ones such as surface cleaners, to dangerous goods such as brake cleaners, which containing harmful substances. It’s important to identify ALL products in your inventory that contain chemicals.
- Assess chemical hazards – After identifying the chemical hazards present in your workplace, the next step is to assess those hazards, whether health or physiochemical hazards.
- Manage chemical risks – Once you’ve assessed the chemical hazards, the next step is to implement the hierarchy of actions in chemical risk management.