November 19, 2019
The Victorian Government’s proposed workplace manslaughter offence has been passed by the Victorian Parliament and may commence anytime up to 1 July 2020.
HIA notes that the Parliamentary debate about the proposed offence mainly concentrated on the exclusion of employees and the need for employer or bosses to go to jail if someone dies at the workplace. The debate until last night generally ignored the impact of the proposed offence on smaller businesses (other than farmers) and particularly had been indifferent to the impact of the offence on contractors and self-employed workers and employees who owe duties other than a duty under section 25 of the OHS Act.
A major objection that HIA, and other industry associations, have with the offence is that it undermines the existing shared responsibility for workplace safety. Regardless of the Government's assertion that the existing manslaughter offence could apply to employees, the blunt fact that the “workplace manslaughter” offence excludes most employees, but applies to everyone else in the workplace (including contractors) sends a message to employees and unions that employees are not responsible if their failure to follow OHS requirements causes a death. Businesses, employers, contractors, occupiers of premises and suppliers of plant and equipment should not be placed at risk of going to jail for the customised 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 vague and rarely used common law manslaughter offence. Comments made in the Parliamentary debate about the offence not making employers responsible for rogue employees is little comfort when the offence creates the perception that employers can go to jail for being criminally negligent but employees will not. The offence also provides duty holders under the OHS Act with less rights than common criminals.
Unfortunately these objections have been ignored by the Victorian Government and the offence will soon apply in Victoria. HIA will continue to work to raise member concerns and provide further information about the implications of the offence shortly.
For further information, please contact HIA Workplace Services on 1300 650 620.