By Jay McGrath

Workplace Manslaughter Laws in Victoria come into effect on July 1, 2020.

The issue with new legislation such as this is that we all have a number of views on how it may, or even should, be interpreted but until the courts begin to make determinations, it is largely theory.

We can only hope that there will never be a prosecution under this new law as the primary test for a prosecution is the death of a worker.

What the law says

These new Laws make the prosecution of grossly negligent acts of an employer more easily prosecuted, and significantly increase the penalties, but it is not really new. Victorian employers have for a long time faced the possibility of jail if they show a blatant disregard for life.

In principle, to commence a prosecution under the new law, there must be three conditions where an act:

1. causes the death of a worker or member of the public;
2. involves a breach of an OHS duty;
3. was negligent.

Workplace Manslaughter penalties will apply when all of the elements of the offence are proven as follows:

1. the accused is a body corporate or a person who is not an employee or volunteer
2. the accused owed the victim a duty of care pursuant to the OHS Act (this includes duties owed to employees, contractors and members of the public) (applicable duties)
3. the accused breached that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or serious illness
4. the act that breached the duty of care was committed consciously and voluntarily
5. the accused’s breach of the duty causes the victim’s death.

A person, or a commercial entity which owes applicable duties to ensure the health and safety of another person in the workplace, can be charged with Workplace Manslaughter.

In certain circumstances, officers of organisations may be charged if their organisation owes applicable duties. These individuals may be:

1. directors and secretaries of companies
2. partners of a partnership or joint venture
3. the trustee of a trust
4. persons who participate in the making of decisions that affect a substantial part of the organisations business
5. persons who have the capacity to affect significantly the organisations financial standing.

Voluntary and deliberate conduct is ‘negligent’ if it involves a great falling short of the standard of care that a reasonable person would have exercised in the circumstances and involves a high risk of death, serious injury or serious illness. It is a test that looks at what a reasonable person would have done in the circumstances.

This negligent conduct can include a failure to act in particular circumstances, particularly when it would have been reasonable to do so. As an example, and importantly for any ‘officer’, this may include when a person:

1. does not adequately manage, control or supervise its employees
2. does not take reasonable action to fix a dangerous situation, in circumstances where failing to do so causes a high risk of death, serious injury or serious illness.

It would have to be established that it was the officer’s negligent breach of their duty of care that caused the death. That is, their acts or omissions must have contributed significantly to the death or been a substantial cause of it.

It is important to remember that this injury might well be a mental injury that results in the person taking their own life. It is conceivable that these circumstances could lead to prosecution in certain ‘bullying’ type scenarios if it is ignored by the employer.

Penalties

The new laws will attract significant penalties with maximum fines of approx. $16.5m
and jail terms of up to 20 years for employers. In addition, there may be fines of up to $1.65m for the negligent officers.

We have recently been attempting to focus the minds of clients on this matter by asking them: “Who in your business will be the ones that go to jail?”

The identification of these ‘officers’ is a legalistic question, and will be tested over time, but the expectation at this point is that it is the senior officers of a company, sole traders and partnerships who could be prosecuted separately from the business, and be exposed to the risk of jail where they are negligent by failing to take reasonable steps on workplace safety to prevent the fatality.

With all of this in mind, we at Aegis RMS are of the view that there are a number of things that you can and should do to avoid prosecution.

How to avoid exposure

So, what do we need to do to start to feel comfortable that as ‘officers’ we are not exposed? Pretty much just continue to do what we should have been doing all along.

I keep coming back to one simple thing: if we do all that we can do to make sure nobody gets hurt (which is the morally right thing) then our business is protected.

To keep our people safe, and consequently our businesses, we need to make sure that we:

• review all the potential hazards in the workplace and control the risks associated with those hazards;
• classifying those possible hazards according to risk and document those controls in place through a fluid Risk Register;
• include mental health risks as well as physical risks in those reviews;
• properly review of all of the safety systems and controls in place and ensure they work. This includes any potential mental health risk assessments that might be needed;
• try to review the practices that occur in and around the ‘shadows’ of the business. Those ‘unwritten’ practices that often exist outside of the formal processes;
• review the OHS leadership and culture to ensure that any potentially negligent conduct is called out before it can have an impact;
• consider the insurance arrangements for your organisation and officers;
• measuring recent compliance levels so you know what is happening with such policies and procedures.

Once all of these issues have been addressed, you then need to manage to these levels. If we say that we do (or will do) something, then we need to do it.

And then we need to make sure that everybody in the business understands what it means to work safely. This requires training, assessment and supervision. If we don’t train, assess competency, supervise and record all of that, then we are exposed. Even if we train, but informally and undocumented, we are exposed.

A lot of people are worried about this legislation and it has gained a lot of airtime. If you have been doing what you should have been doing, then this legislation should not be of any further concern to you.

However, if you can’t show that you have done all that you should have done, then fear is probably an appropriate emotion.

Jay McGrath is a Senior Account Manager at Aegis RMS.

Disclaimer: This article provides general advice and should not be considered legal advice or an insurance consultation. You should seek appropriate counsel for your own situation. In addition, this post is directed at people in Australia. If you are outside Australia, please be aware that the circumstances in your own country may be different.