On the 30 of October the Victorian Government introduced an amendment to the Victorian Occupational Health & Safety Act (OHS Act). If passed, the bill will insert legislation for criminal manslaughter offences.
This would create a new criminal offence of workplace manslaughter. Where it is deemed negligence causing death of an employee or member of the public due to conduct of either an employer or officer of an employer, they would be liable.
Compliance under the new bill
As written in the act it is the employer’s duty to so far as is reasonably practicable, provide and maintain for its employees a working environment that is safe and without risks to health.
Employers would only commit the new offence if they were to breach a duty owed under the OHS act. Employers owe OHS Act duties to employees, contractor’s employees, sole traders, and any members of the public that may be in or near the workplace.
Employers who comply with their duties under the OHS Act would not commit the new offence and would have a complete defence.
Volunteers and employees who are not ‘officers’ would be exempt from the new offence of workplace manslaughter.
Negligent conduct under the new bill
An employer would be negligent if their conduct was deemed below required standard of care that resulted in death, serious injury or illness.
In determining negligence, a comparative on behaviours and actions between employers deemed negligent to those deemed compliant would be made. An employer who commits the offence need not necessarily be an individual person, employers can include bodies corporate, partnerships, unincorporated bodies and unincorporated associations.
Negligent conduct causing death may include:
- non-compliant work practices, not limited but including poor or undocumented policy and procedures;
- a culture of non-compliance to its OHS Act duties;
- individuals within the organisation with due responsibility and authority not taking the necessary steps or precautions amounting to negligent conduct;
- failing to take action to prevent or minimise the risk of death, serious injury or serious illness.
Liability for negligent conduct would decrease where a non-compliant employee acted in a manner opposed to the organisation’s expectations of its employees.
Officers are determined as directors or employees who take part in decision making processes impacting the whole or a major part of the running of the business or organisation.
To determine negligence some of the following factors would be considered:
- whether the officer knew about the matter;
- whether the officer had the ability to make or participate in decision making that influenced the owner’s corporation relating to the matter; and
- whether a breach by the body corporate also caused the offence, by either act or omission by a person or persons.
Where negligent conduct of employers and officers situated outside of Victoria would cause the offence of workplace manslaughter in Victoria, those employers and officers would still be liable.
It is currently proposed that the bill be passed in July 2020.
Rosa Raco | Principal