As Victorian businesses gear up for staff returning to the office, employers are encouraged to consider recent changes to workplace manslaughter laws.

As recently as December 2020, WorkSafe Victoria reported that two companies and a director were penalised $250,000 after a contractor died when he was run over by a trailer at a Mildura almond processor in 2018.

Olam Orchards Pty Ltd and Complete Commodity Management Pty Ltd (CCM) pleaded guilty in the Mildura Magistrates’ Court on Thursday last week to one charge each of failing to ensure persons other than employees were not exposed to risks to their health or safety. The court ordered Olam to pay $75,000 and CCM $150,000 to local charities.

Employers are urged to provide a safe workplace and to familiarise themselves with the legislation. As of 1 July 2020, employers who negligently cause the death of a worker could face 20 years in prison or in the case of a body corporate, could be fined up to $16.5 million.

The Victorian Government has recently passed the workplace manslaughter laws under The Workplace Safety Legislation Amendment Bill 2019.

According to the Government, the purpose of the workplace manslaughter offences is to hold to account those who have the power and resources to improve safety.

The laws target officers of organisations who have the capacity to affect a substantial part of the organisation’s business or financial standing including directors, partners and company secretaries.

Convictions

A conviction will be made in cases where the following is proven:

• the accused is a body corporate or a person who is not an employee or volunteer;
• the accused owed the victim a duty of care pursuant to the Occupational Health and Safety Act, namely, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health;
• there was a breach of the duty in circumstances where there was a high risk of death, serious injury or serious illness;
• the act that constituted the breach was committed consciously and voluntarily; and
• the breach of the duty caused the victim’s death.

The Law requires a negligent criminal breach of the duty of care that caused the death. This means that the employer’s acts or omissions must have contributed significantly to the death.

Negligence will be established where the conduct of the employee involves failing to meet the standard of care that a reasonable person would have exercised in the circumstances. The test in Victoria considers what a reasonable person would have done in the circumstances. This means that if an employer does not take reasonable action to address risks or fix a dangerous situation, they are also being negligent.

Employers will need to ensure they manage, control and supervise as a failure to act is also caught under the legislation.

The Law also intends to capture instances where the worker’s death occurs after being exposed to asbestos.

What is the law in other states and territories?

Victoria has followed in the footsteps of Queensland that has passed equivalent laws and where on 25 October 2019, a company and two of its directors were charged with industrial manslaughter when a worker was killed by a reversing forklift.

It was alleged that the employer failed to create a safe area for pedestrians separated from mobile plant and failing to properly supervise its employees including the operators of the mobile plant.

The case is yet to be heard by the Magistrates’ Court. The Northern Territory has also passed equivalent laws after those in Victoria.