Wednesday 4 December 2019

New Victorian workplace manslaughter offences

Victoria now joins the Australian Capital Territory and Queensland in having specific health and safety manslaughter laws in place.  On 26 November 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 was passed, without amendment, by the Victorian Legislative Council and will commence operation by 1 July 2020.

This legislation creates two offences of workplace manslaughter in the Occupational Health and Safety Act 2004 (OHS Act) for the following duty-holders:

  • a person (which includes Victorian public sector bodies) who is not a volunteer.
  • a person who is an officer of an applicable entity, who is not a volunteer.

These offences have significant implications for both employers and officers.

A body corporate found to have negligently caused the death of an employee or member of the public will face fines of up to $16.5 million, and individuals will face up to 20 years in jail.

What constitutes 'workplace manslaughter'?

The new offences provides that employers, self-employed people and officers of the employers must not engage in conduct that:

(a) is criminally negligent; and

(b) constitutes a breach of an applicable duty that the person owes to another person; and

(c) causes the death of a person at or near a workplace.

An entity is an applicable entity if it is a body corporate or an unincorporated body or association or a partnership.  As such, it will also apply to the Crown and Victorian public sector bodies.

Key takeaways

  • two new offences of workplace manslaughter will commence operation in the OHS Act from 1 July 2020, at the latest.
  • the new offences will be not able to be determined in the Magistrates' Court.
  • WorkSafe Victoria will investigate the new offences of workplace manslaughter using their existing powers under the OHS Act.  
  • the privilege of self-incrimination will be able to be claimed by an individual.
  • volunteers and employees who are not 'officers' cannot be charged with workplace manslaughter under the OHS Act.
  • there will be no statutory time limit within which WorkSafe can bring a charge of workplace manslaughter.
  • the new offences will capture all types of workplace risks that cause death, including mental health risks and long-term occupational diseases.  For example, a suicide that is the direct result of negligent workplace practices and policies that substantially contribute to the death may constitute workplace manslaughter.
  • the Andrews Government has committed a $10 million package to boost WorkSafe Victoria's ability to investigate and prosecute workplace manslaughter offences.

The VGSO Occupational Safety Team provides advice and conducts litigation in relation to all aspects of Victorian public sector occupational health and safety.  In particular, the Occupational Safety Team can provide advice and training to Victorian public sector bodies on their rights and obligations as a result of the introduction of these new workplace manslaughter offences.

To find out more contact:

Jodie Burns
Managing Principal Solicitor
Victorian Government Solicitor's Office

Harry Kinkead
Senior Solicitor
Victorian Government Solicitor's Office

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