Yesterday, 30 October 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) (the Bill) received its second reading speech in the Victorian Legislative Assembly. The Bill, if passed, provides for the new offence of ‘workplace manslaughter’ to come into operation on a day to be proclaimed or on 1 July 2020 at the latest.
The Bill and explanatory memorandum are now also available. According to the explanatory memorandum, the purpose of introducing the offence of workplace manslaughter is to “…hold those with the power and resources to improve safety to account, such as organisations and their officers. Employees who are not officers do not have a sufficient level of power or resources to improve safety standards”.
If passed, the Bill creates a new Part 5A in Occupational Health and Safety Act 2004 (Vic) (OHS Act) and the workplace manslaughter offence will become section 39G OHS Act. The offence consists of a number of elements. A person who is not a volunteer must not engage in conduct that is negligent and constitutes a breach of an applicable duty that the person owes to another person and causes the death of that other person. The maximum penalty is 20 years’ imprisonment for a natural person and 100,000 penalty units for a body corporate (which at present equates to approximately $16,522,000).
Conduct which is negligent for the purposes of the offence is conduct which involves “a great falling short of the standard of care that would have been taken by a reasonable person” or a reasonable body corporate as the case may be, in the circumstances in which the conduct was engaged in and involved a high risk of death, serious injury or serious illness. Conduct can be constituted by an act or an omission to perform an act.
In determining whether a body corporate engaged in negligent conduct for the purposes of the offence, the legislation states that “what matters is the conduct engaged in by the body corporate itself” and it does not matter whether that conduct was engaged in by the officers.
The offence applies to persons with an applicable duty, being a duty under Part 3 OHS Act but excluding sections 25 and 32 insofar as they relate to employees (officers who owe a duty under section 32 do have an “applicable duty”).