Workplace Manslaughter and Business Obligations

In 2021, a 45 year old stonemason business director was charged with workplace manslaughter after a subcontractor was fatally crushed at a factory in Somerton, Victoria. This February 2023, two companies are facing charges of workplace manslaughter after a 21-year-old apprentice electrician was electrocuted while performing maintenance work on a car lift at West Melbourne.

Workplace manslaughter cases are now being prosecuted and businesses should be aware of their obligations.

What is it?

Workplace or industrial manslaughter is a term used to describe situations where a person dies as a result of an employer’s negligence or recklessness. It is a criminal offence in five Australian states – Victoria, Queensland, the Australian Capital Territory (ACT), Northern Territory and Western Australia. In these states employers can be held criminally liable for workplace fatalities, and the penalties for industrial manslaughter can be severe. It ranges from up to 20 years of imprisonment to life imprisonment in some states for individuals and fines between the range of up to $10 million to $18 million for corporations.

In this article, we focus on the Victorian laws.

Who can be charged?

The introduction of the industrial manslaughter offence does not create a new duty for employers or officers. The duties already existed. This includes ensuring employees have access to safe equipment, adequate training and proper supervision. Employers also have a duty to ensure that the risks in the workplace are identified and managed, and that all employees are informed of these risks.

What the offence introduces is new and more severe consequences for breaching the existing duties under the Occupational Health and Safety Act 2004 (Vic) (the OHS Act).

It applies to anyone who has a duty under the OHS Act, except employees and volunteers. This includes:

• Employers
• Self-employed persons
• Persons (excluding employees) who manage or control workplaces
• Designers of plants, buildings or structures
• Manufacturers of plant or substances
• Suppliers of plant or substances
• Persons (excluding employees) installing, erecting or commissioning plant

Officers of “applicable entities” can also be charged with the offences where the officer’s negligent conduct constitutes a breach of the entity’s duties and results in the death of a person. An applicable entity includes:

• A body corporate;
• An unincorporated body or association; and

An “officer” includes directors, secretaries and persons:

• Who participate in making decision that affect the whole, or a substantial part of the business;
• Who have the capacity to significantly affect the entity’s financial standing; or
• In accordance with those instructions or wishes the directors of a company are accustomed to act.

What is the offence?

A relevant duty holder will commit the workplace manslaughter offence if they engage in conduct (act or omission) that:

• Is negligent: Negligent conduct involves a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in.
• Constitutes a breach of a duty as set out in the OHS Act; and
• Causes the death of another person: The Act does not define when the relevant duty holder’s conduct is taken to be the cause of death. The common law test for causation will most likely be applied. This requires the duty holder’s acts or omissions to have contributed significantly to the death, or to have been a substantial and operative cause of the death.

It is important to note that the deceased person does not have to be an employee of the relevant duty holder. The offence may be committed even where the death occurs sometime after the relevant conduct is engaged in.

How is the offence being received?

The introduction of workplace manslaughter has been widely welcomed by unions and employee advocacy groups. They hope the new law will encourage employers to take workplace safety more seriously and will ultimately reduce the number of workplace fatalities in the state.

However, some businesses have expressed concerns that the law is too harsh and that the threat of imprisonment may deter individuals from taking on senior leadership roles in companies.

Despite these concerns, the Victorian government remains committed to enforcing the workplace manslaughter laws.

What does this mean for businesses?

The best defense to a claim of negligence is to have in place a comprehensive risk management process as this reduces the risk of reasonably foreseeable harm occurring. Part of the process is to consider what policies and procedures the business has in place, whether the business assesses its risks and puts in the appropriate protocols to address those risks, whether employees are trained in safety measures and more.

If you need additional information about workplace manslaughter laws in other states and/or want to find out more about how to protect your business against claims of workplace manslaughter, please get in touch with Constructive Legal Solutions on 1300 972 092 or admin@constructivelegalsolutions.com.au.