Workplace death toll rises as Labor pledges industrial manslaughter laws

On 6 May a worker was crushed to death by a forklift load that slipped from its tynes, bringing to 12 the number of workers who have been killed at work in Victoria this year.

Labor, State and Federal, have committed to introducing tough new industrial manslaughter laws to enforce greater employer diligence and compliance.

In this blog, I look at what Labor has said publicly on industrial manslaughter, and outline the level of entitlements that are available should someone be fatality injured at work.

Early this month, in his speech at the International Workers Memorial Day, Federal Labor MP Brendan O’Connor spoke of the overriding priority that people are not injured or killed at work.

While in Victoria workplace manslaughter laws currently do not exist, the Andrew’s Government has committed to enact laws this year. The law is designed to raise fines and jail sentences for employers of negligent workplaces resulting in deaths. The law would act as both a deterrent and a penalty to reduce and prevent injuries and death at work.

While this proposed state legislation would be useful, what is really required are workplace manslaughter laws that apply across the country because across the country 157 people lost their lives at work last year.

As part of the recent election campaign, the federal Labor Government had pledged that if elected, they would work with states and territories to hold employers liable for gross negligence of their workers. While the coalition has not made the same promise, stakeholders continue to put pressure on both major parties to create a nation-wide law.

WorkSafe statistics reveal that farms and construction sites are the most dangerous places to work. Last year in Victoria the majority of workplace deaths occurred in the construction and agriculture industries.

Nine deaths involved machine and mobile plant, including cranes, excavators, tractors, spreaders and trucks and three involved trench incidents, including two collapses. The investigations over recent years also reveal that many workers are killed in regional Victoria on farms.

Entitlements following a work-related death

While the priority is to continue to drive down the rate of industrial deaths, should a fatality occur, payments and entitlements are available under WorkCover.

The Workplace Injury Rehabilitation and Compensation Act 2013 ("the WIRC Act") governs entitlements to families and dependants after a work-related death which includes:

Lump sum payments
Partner entitlements
Children’s entitlements
Additional entitlements

Lump sum payments

Lump sum payments can be made to dependant partners, children or orphans. The amount is set at $611,430* to be shared between all eligible dependants.

Partner and children entitlements

WorkSafe will provide a weekly pension for dependant partners, children or orphans. A dependant partner will receive the pension for three years from the date of the worker’s death and dependent children may receive the pension from 14 weeks after the date of death until they reach the age of 16. If the child is a full-time student or apprentice after this time, they are still entitled to receive the pension.

Additional entitlements

Extra benefits available include the following:

Medical services provided to the deceased worker such as ambulance, hospital and medical treatment
Burial or cremation expenses up to $15,230
Travel and accommodation expenses for family members to attend a burial or cremation service if held more than 100km from their normal residence up to $5,110
Family counselling services
Non-dependant family members for reimbursement of expenses in cases of financial hardship up to $36,470*

Entitlements under the Wrongs Act

In addition to claiming WorkCover compensation, dependents of a deceased worker may, if eligible, claim for damages under Part III of the Wrongs Act 1958. They may claim up to $998,970,* however any entitlements under the WIRC Act are deducted from any damages under the Wrongs Act.

Speaking to a lawyer may be the last thing on a family member’s mind following a workplace tragedy, but it can help ensure that at least the correct entitlements are claimed.

*Figures applicable as at 1 July 2018