Ensuring the health and safety of workers and contractors has never been so important
26th November 2019 saw the Victorian Parliament pass the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 introducing new Workplace Manslaughter laws.
Maximum fines of $16.5 million for companies with individuals facing 20 years imprisonment if found guilty.
According to a media release by the Hon Jill Hennessy (Minister for Workplace Safety), "All workers deserve a safe workplace and the proposed laws send a clear message to employers that putting people’s lives at risk in the workplace will not be tolerated."
What impact will these new laws have on PCBUs, building owners, managers and employers?
We will have to wait to see the full effect that these laws will have on industry but with local government authorities finally able to prosecute businesses who do not provide the necessary Duty of Care for their workers, there may be many out there who are at great risk due to inadequate health and safety practices.
It is certainly time to review what additional precautions need to be done in your workplaces and what procedures must be implemented to reduce the likelihood of a workplace death occurring.
What other states have similar Workplace Manslaughter laws?
Currently Queensland, Northern Territory and Western Australia have already introduced Workplace Manslaughter offences and with Victoria following suit it would seem to be only a matter of time before the other states act to implement changes through their parliaments.
In October 2019 Queensland announced its first prosecution for Workplace Manslaughter, finding a Brisbane recycling company guilty. This case is evidence that the authorities now intend to exercise their powers and make people and companies accountable for their actions.
What date will Workplace Manslaughter laws come into effect in Victoria?
These new laws will come into effect on 1 July 2020.
Who can be prosecuted for this offence?
According to Workplace Victoria, Workplace Manslaughter can be applied to a person (and their officers) who hold duties under Part 3 of the OHS Act. This includes:
- directors and secretaries of companies
- partners of a partnership or joint venture
- the trustee of a trust
- persons who participate in the making of decisions that affect a substantial part of the organisation's business
- persons who have the capacity to affect significantly the organisation's financial standing
Employees and volunteers are not culpable.
Is prosecution only limited to one company?
In a recent webinar, Worksafe Victoria confirmed that it is possible for multiple organisations or people to be charged with workplace manslaughter for the same incident.
A scenario where this might happen could be in the instance of a subcontractor carrying out maintenance on a cooling tower. Both the building owner / PCBU (Person Conducting a Business or Undertaking) and the subcontractor's employer are responsible to ensure that "as far as is reasonably practicable" they are providing a safe workplace. If an incident should occur on the worksite causing the subcontractor's death and investigations find them guilty of failing to provide this, then they could both be charged with workplace manslaughter.
Similarly, there could also be concurrent charges laid in connection with this incident, if Worksafe Victoria discovered other breaches of the OHS Act.
What are the fines and penalties that companies and/or individuals can incur?
A maximum penalty of 20 years imprisonment for individuals with a maximum fine of $16.5 million for companies. Of note, is that organisations can be charged without the need for individual fault being attributed.
Who and what is covered by the offence?
Workplace Manslaughter can be charged upon the death of employees, contractors and members of the public (bystanders). It can even be imposed if a person's death occurs sometime after the relevant incident such as in the case of death as a result of an illness or injury.
What is the definition of negligent conduct?
Worksafe Victoria defines negligent conduct as, when a person:
- does not adequately manage, control or supervise its employees
- does not take reasonable action to fix a dangerous situation, in circumstances where failing to do so causes a high risk of death, serious injury or serious illness
"Negligent conduct can include a failure to act."
Who will carry out the investigations of Workplace Manslaughter in Victoria?
Using their powers under the OHS Act, Worksafe Victoria will be the lead authority and will investigate any workplace deaths through to prosecution if this is found to be justified. They will work alongside Victoria Police, the Office of Public Prosecution and have recently set up a new Fatalities Investigations team.
When charging a person or company with Workplace Manslaughter, it must be established that "The acts or omission to act must have contributed significantly to the death, or have been a substantial and operative cause of it". Additionally, "the acts or omission to act must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death".
How to protect yourself, your workers and your business
Ask yourself these questions:
- How long since you have carried out risk assessments on the tasks and activities that are performed in and around your workplace? Safety in the workplace is a constantly evolving process and it is important that you keep on top of any new or varying activities that have been implemented and address any safety concerns.
- Do employees or sub contractors need to access your roofs to perform maintenance on HVAC, plant equipment or to carry out other tasks at height? If so, you should conduct a height safety audit to ensure that these areas can be accessed safely and without risk of a fall from height. Frequency of use, appropriate systems and operator training are all areas that need to be considered when examining the systems that are in place.
- Is there equipment in locations that cannot be accessed? Many times equipment is placed in confined areas that are difficult or nearly impossible for personnel to get to. Compliant access platforms and stairs or other appropriate systems must be provided to allow access to equipment to ensure that workers can perform their tasks safely.
- Do you have the correct procedures in place such as Safe Work Method Statements (SWMS), Risk Assessments and Rescue Plans? These need to be easily located within reach by all staff and must be used whenever high risk work is to be carried out.
There are many other questions that need to be asked and answered to ensure you are providing a safe working environment. Workplace Manslaughter laws are here to protect workers and there will be no negotiation should you be found guilty of not providing the utmost safety for your workers.
- Download the Victorian State Government's Fact Sheet which details the key elements of the new Workplace Manslaughter laws.
We are here to help. Contact the SAYFA team on 1300 301 755 or firstname.lastname@example.org for any further assistance.