Workplace Manslaughter Bill Passed - Vic
November 26, 2019
Yesterday the Victorian Parliament passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019. This Bill inserts a new workplace manslaughter offence into the Occupational Health and Safety Act 2004. The commencement date for the new offence is yet to be confirmed.
HIA’s Position on the New Offence
HIA did not support the legislation as proposed by the Victorian Government and engaged extensively with the government, opposition and cross-benchers seeking amendments.
HIA and other industry groups had significant concerns about the content and approach taken by Government. The offence excludes most employees which is inconsistent with Occupational Health and Safety Laws. It does not recognise that safety is currently a shared responsibility in the workplace. The introduction of the offence may not improve safety outcomes and creates a perception that employees are not responsible for their own safety in the workplace.
HIA also had major concerns about the lack of protection against self-incrimination for duty holders under the OHS Act, who will have less rights than those charged with other criminal offences.
The unfair application to small and family businesses was another concern. Unfortunately the Victorian Government was of the view that the discretion of whether to prosecute or not would provide sufficient protection for distressed family and small business owners facing the risk of prosecution for a workplace death.
HIA has pushed for amendments on all of these key issues and is disappointed that despite extensive debate on them, they were ultimately not included in the Bill that was passed.
Likely Application of the Offence
We know that HIA members take workplace safety seriously, and never want to see a death at their workplace. However, it is important to appreciate that not every death at a workplace will result in a prosecution and conviction of workplace manslaughter. It will not be easy for WorkSafe to prosecute these cases and the exclusion of employees who only owe a duty under section 25 of the OHS Act goes some way to further reducing the possibility of prosecutions.
However, it is fair to say that community expectations that workplace deaths will lead to prosecutions and jail terms places more pressure on employers and other duty holders who already address safety requirements at their workplaces. Whilst this new offence sends a message to employees that they are not responsible if their failure to follow OHS requirements causes a death, these matters will no doubt be assessed on a case by case basis.
Businesses, employers, contractors, occupiers of premises and suppliers of plant and equipment will all be subject to the new offence of workplace manslaughter while an employee whose direct actions or omissions caused a death are most likely only at risk of being charged with the rarely used common law manslaughter offence.
The Parliamentary debate commented that the offence will not make employers responsible for the actions of rogue employees. This is little comfort when the offence creates the potential that employers can go to jail for the criminal negligence of employees, but employees themselves will not.
HIA will provide further information to its members about the implications and commencement date of the offence shortly. If you need more information about this matter you may contact a HIA workplace services advisor on 1300 650 620.