The new offence carries penalties of up to $16.5 million for companies and imprisonment of up to 20 years for individuals.
The new laws aim to prevent workplace deaths and to deter persons who owe duties under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) from breaching those duties.
The laws will take effect on a date to be determined by the Victorian Government, which will be no later than 1 July 2020.
What do these changes mean for you and your organisation?
In this update, we summarise key provisions of the new laws and what you should be doing to prepare for them.
If you would like to discuss your obligations under the OHS Act or steps you and your organisation can take to prepare for the new laws, please contact a member of our Workplace Advisory team.
Who do the new laws apply to?
Your organisation will be subject to the new laws if it is a body corporate (such as a company or an incorporated association), an unincorporated body/association or a partnership.
You will personally be subject to the new laws if you are:
- a self-employed person, or
- an “officer” of a body corporate, or an unincorporated body/association or a partnership.
Officers under the OHS Act include:
- directors, company secretaries, partners, receivers, administrators and liquidators
- persons who participate in making decisions that affect the whole, or a substantial part, of a business, or whose instructions are carried out by its directors
- persons who have the capacity to affect significantly the financial standing of an entity, and
- persons whose instructions or wishes the directors of a corporation are accustomed to act.
Volunteers and employees who are not officers are excluded from the reach of the new laws. This is because they are considered not to have a sufficient level of power or resources to improve safety standards.
What is the new “workplace manslaughter” offence?
The new laws do not introduce new duties under the OHS Act, rather a new offence is created which applies to particular serious breaches of current duties.
The new laws make it a criminal offence under the OHS Act for a person to engage in conduct that:
- is negligent
- breaches an applicable duty that the person owes to another person, and
- causes the death of that other person.
When will conduct be “negligent”?
- a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances, and
- a high risk of death, serious injury or serious illness (including occupational diseases).
Negligence of an organisation
Your organisation could be negligent directly, including for example, if its unwritten rules, policies, work practices or conduct implicitly authorise non-compliance or fail to create a culture of compliance with its duties.
An organisation may also be negligent indirectly, through the negligent acts and omissions of its employees, agents or officers, after consideration of matters such as the steps taken by the organisation to prevent or minimise the risk of death, or serious injury or serious illness.
However, the legislation is not intended to treat an organisation as negligent solely because a “rogue” employee, agent or officer acted contrary to steps taken by the organisation.
As an ‘officer’, you could be found to be negligent based on factors such as:
- your knowledge of the situation
- the extent of your ability to make or participate in decisions that affect your organisation, and
- the acts and omissions of other individuals.
What is an “applicable duty”?
The current general duties under the OHS Act generally apply. They include the duty of an employer to:
- provide and maintain a safe working environment for its employees
- monitor the health of its employees and conditions at any workplace under the employer’s management and control, and
- ensure that other persons, are not exposed to risks to their health or safety risks arising from the conduct of the business of the employer (eg people attending or proximate to the workplace).
- The duty of a self-employed person to ensure that persons are not exposed to risks to their health and safety arising from the conduct of the undertaking of the self-employed person, and
- The statutory health and safety duties of people who manage or control workplaces, designers of plant, buildings or structures, and of manufacturers or suppliers of plant or substances. Similarly, there are general statutory health and safety duties of those who install, erect or commission plant at a workplace.
When will an organisation’s or officer’s conduct “cause” death?
For conduct to cause death, it must have “contributed significantly” to the death or have been a “substantial and operating cause”.
It is also possible that the new laws would capture an organisation’s or officer’s conduct if the conduct causes a person to be injured or contract an illness (including a mental illness) that later causes the person’s death.
What do I need to do now? The window of opportunity
Amongst other purposes, the new laws are intended to encourage organisations and officers to allocate appropriate resources and training to improve workplace safety.
There is a window of opportunity for your organisation to conduct a full health and safety compliance audit, before the new laws come into effect. The compliance audit, suited to your organisation’s operations and workplace, may be conducted by an independent, suitable and qualified external OHS specialist. It could be conducted by the organisation’s internal personnel responsible for work safety.
- a review of all workplace health and safety policies, procedures and practices including to ensure that they support compliance with duties under the OHS Act
- identification of any gaps in training, support and information provided to people in the workplace
- a review of all safety systems and plant and equipment
- a review of safety incident and workplace death reporting and action plans, and
- consideration of what information and support is (and should be) provided to officers in relation to their personal duties.
Directors and other officers need to be proactive and diligent to be aware of their potential liability and to take steps to satisfy themselves that their organisation has in place systems to manage health and safety in the workplace in compliance with its duties under the OHS Act.