As reported in earlier articles on this blog, the Victorian Legislative Assembly has heard the second reading speech of the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) (the Bill) and passed the Bill on 14 November 2019.
The Bill was sent to the Legislative Council on 14 November 2019 at which time it received its first and second reading. The Legislative Council heard that the Bill seeks to amend the Occupational Health and Safety Act 2004 (OHS Act) to provide for offences for workplace manslaughter and will provide for the establishing of the Workplace Incidents Consultative Committee, made up of family members of victims to advise on future reforms and initiatives. The debate on the Bill was then adjourned and is now listed to be heard on Tuesday 26 November 2019.
Overview of Workplace Manslaughter offences
The Bill provides for two new offences of workplace manslaughter to capture negligent conduct which causes the death of an employee or member of the public.
The first offence applies to a person (who is not a volunteer) and the maximum penalty is imprisonment for 20 years for a natural person, or 100,000 penalty units for a body corporate (approximately $16m).
The second offence applies to officers of an applicable entity (defined to include a body corporate, an unincorporated body or association, or a partnership). The maximum penalty is 20 years imprisonment.
The elements of the offences involve negligent conduct which constitutes a breach of an applicable duty owed to another person and causes the death of that other person.
Negligence is defined as a ‘great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in’ and a high risk of death, serious injury or serious illness. High risk, and serious injury or serious illness, are not defined.
Conduct is defined to include both acts and omissions. The conduct may ‘constitute a breach of an applicable duty’ even if other conduct also contributed to the breach and whether or not a proceeding has been commenced in respect of that other breach conduct. In determining whether conduct by a body corporate is negligent, the Bill provides that it does not matter whether the conduct is imputed to the body corporate or whether any of the officers were involved (amongst other things).
Lastly, an applicable duty is owed where the duty is imposed explicitly (because the person is part of a specified class to whom the duty is owed) and implicitly (where the duty provision does not expressly specify a class of person but the purpose of the provision is to ensure the health and safety of a particular class and the person is part of that class).
The Bill clarifies that the workplace manslaughter offences are indictable offences that cannot be determined summarily (i.e. by a Magistrate). Interestingly, the 2 year statutory limitation period on bringing proceedings under the OHS Act will not apply to the proposed workplace manslaughter offences. The intention is to allow agencies sufficient time to investigate complex workplace fatalities and bring proceedings.
As noted earlier, volunteers are excluded from both offences.
Government support package
To support the introduction of the Bill, the Labour Government has announced a $10 million dollar package to boost WorkSafe Victoria’s investigation and enforcement capacity, by funding a specialist team to investigate and prosecute workplace manslaughter offences. A recent Victorian Government media release provides further details on the package to support family members of victims, which will include:
- Clear protocols in place between WorkSafe and Victoria Police that require families to be notified as soon as possible after a workplace death or a serious injury;
- Two additional dedicated WorkSafe Family Liaison Officers to provide coordinated case management for families throughout the investigation and any legal processes following a workplace death;
- Additional support including expanded grief counselling and a dedicated in-house family support service to be piloted at the Coroners Court for families affected by workplace deaths; and
- Including truck drivers killed on the road in the workplace death toll, ensuring these deaths get the focus they deserve.
The Legislative Council’s next sitting date is Tuesday 26 November 2019. If the Bill is passed, the offences will come into operation on 1 July 2020 (if not proclaimed earlier) and Victoria will join the Australian Capital Territory and Queensland in having workplace/industrial manslaughter offences.