Industrial manslaughter laws were introduced in Victoria last month. That means from now on, people and organisations that have substantial influence over a workplace can face criminal charges if their actions cause the death of an employee.
As a corporate lawyer specialising in workplace law and an occupational health and safety educator who visits a variety of workplaces on a weekly basis, I know there are a lot of questions among business leaders about Victoria’s new laws, as well as the relatively recent introduction of similar legislation in Queensland, Western Australia, Northern Territory and the ACT.
For instance, you may be wondering why these laws are being introduced now.
The most pressing reason is that Australia has not managed to significantly shift its workplace deaths over the past decade. Currently, the five-year average of workplace fatalities is 186 deaths across the nation, each year.
Under the laws being introduced to states, we could see hundreds of prosecutions for deaths each year. But I believe that’s unlikely. That’s because industrial manslaughter laws are already fulfilling their purpose: deterrence.
The most important thing to know about these laws is that they do not place extra duties on organisations and workplace leaders. However, they do make business leaders more accountable by increasing the penalties for failing to meet existing duties under each states’ occupational health and safety legislation.
Victoria’s penalties are a maximum of 25 years’ imprisonment for individuals and a maximum fine of $16.5 million for body corporates.
Safety compliance does not have to be expensive or scary.
In fact, I have seen compliance transform businesses in many beneficial ways, foremostly that staff are more satisfied and the company is in a better position to act as a role model within its industry.
I hope my answers to the questions below empower you to take your safety duties in your stride.
Safety duties are laid out in the Victorian Occupational Health and Safety Act or in the equivalent act of your own state.
Some basic responsibilities include:
In most states, including Victoria, to be found guilty of industrial manslaughter requires that the convicted organisation or person:
In Victoria negligence is defined as a great falling short of the standard of care a reasonable person would have taken in the circumstances or actions with a high risk of injury, illness or death to others. This includes actions that are not taken by an organisation or person.
Organisations and individuals can be charged, and multiple people can be charged in relation to one case.
Organisations could be companies, incorporated associations, statutory authorities, trustees of a trust, unincorporated bodies and associations, partnerships and government entities.
Individuals who are senior officers of a workplace can be charged. These are people at the highest level of an organisation — so directors and secretaries of corporations, people who make decisions that affect a substantial part of the business, people who have the capacity to significantly affect the organisation’s financial standing, a partner in a partnership, an office bearer in an unincorporated body.
Employees cannot be charged under the laws unless they perform the role of a senior officer.
Remember that having a safe workplace is one thing, but if you enter court proceedings you will need to prove the safety of your workplace. This is where documentation comes in handy.
Creativity is a great resource when coming up with ways to limit risks. In general, it’s better to come up with a solution that requires a simple, permanent change to your workspace or your work processes. Asking your staff to remember to do something extra every time they perform a task is a less reliable solution.
At one worksite, which I frequently use as an example in OHS training, low-cost measures have really made a world of difference.
For more suggestions, I really recommend getting in touch with Work Safe Victoria or your relevant state-based safety body. I also recommend reaching out to mentors in your industry and getting in contact with educational organisations that can give you and your staff hands-on training in safety management.
These new laws mean reaching out to improve your business is definitely worth your time and energy.
NOW READ: How to formalise OH&S policies and procedures when employees are working from home
Neil Salvador is a corporate lawyer specialising in workplace law, lecturer at RMIT, and an occupational health and safety educator at Velisha Education Group.
