Workplace Manslaughter – how will it work in the Victorian landscape?

Jul 2020 | Insurance Workplace Advisory

As of 1 July 2020, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) introduced the new offence of workplace manslaughter in Victoria as an additional avenue to sanction organisations, and certain individuals, who breach the existing duties imposed by the Occupational Health & Safety Act 2004 (Vic) (Act) that results in a workplace fatality. The offence of workplace manslaughter attracts the highest fine in Victoria – up to approximately $16.5 million - for a safety-related offence. 

It is expected that Victorian prosecutorial authorities will use the offence of workplace manslaughter sparingly, and only in the most serious of cases. The recent decision of R v Brisbane Auto Recycling Pty Ltd & Ors1 in Queensland is instructive.

Employers, and individuals, should continue to comply with their existing duties under the Act, but be mindful that workplace manslaughter is now an indictable criminal offence in Victoria. 

Workplace manslaughter in Victoria: what does it mean?

Why has a new offence of workplace manslaughter been introduced?

The key purposes of the new legislation are to:

  • prevent workplace deaths in the future;
  • deter companies and individuals from breaching their existing duties and obligations under the Act, and to send a message that compliance with occupational health and safety laws is important in Victoria; and
  • reflect the seriousness of conduct that puts lives at risk in the workplace.

What is the new offence of workplace manslaughter?

From 1 July 2020, it is an indictable offence for body corporates, certain organisations,2 company officers and certain individuals3 to engage in conduct that is negligent and constitutes a breach of a duty under the Act,4 and that causes the death of a worker or another person. Organisations, including body corporates, can be fined up to approximately $16.5 million,5 and individuals, including company officers, can face imprisonment terms of up to 20 years. In addition, company officers can be fined up to approximately $1.6 million if a body corporate is guilty of workplace manslaughter and the contravention can be attributed to the officer for failing to take reasonable care.6

The existing duties under the Act provide, amongst other things, that an employer is obliged to provide and maintain a safe working environment that is without risk to their employees’ health and safety, so far as it is reasonably practicable.7 For the purposes of the offence of workplace manslaughter, ‘negligent’ is defined as ‘a great falling short’ of the standard of care that a reasonable person would have exercised in the circumstances and that there was a high risk of death, serious injury or illness.8  Either an act or omission may give rise to the offence.

The offence of workplace manslaughter does not impose any new duties on employers. However, the consequences for non-compliance with the existing duties are harsher if the breach is negligent and results in a workplace fatality.

Who does it apply to?

As mentioned above, the offence of workplace manslaughter applies to body corporates, certain unincorporated organisations, company officers and certain individuals. It appears employees cannot be prosecuted for the offence of workplace manslaughter unless they are also a company officer and/or they are found to be a person who manages or controls the workplace.9

The new legislation is targeted at entities and persons that have the resources and/or the ability to exercise control over the workplace.

When does the new offence apply?

The new offence is applicable to all workplace fatalities that occur on or after 1 July 2020. The offence does not apply retrospectively.

How will the offence of workplace manslaughter work in practice?  

Given the recent introduction of the offence of workplace manslaughter in Victoria, we must turn to other jurisdictions to see how the offence may work in practice. 

The first reported decision in respect of any Australian workplace manslaughter law was handed down by the District Court of Queensland - R v Brisbane Auto Recycling Pty Ltd &Ors10 – on 11 June 2020.  The case is instructive. 

What happened?  

The accused company and its two directors, owned and operated an auto wrecking business. The two directors supervised the work at the workplace. On 17 May 2019, a worker was struck and crushed by a reversing forklift. He subsequently died from the injuries sustained.

Following a joint investigation by Queensland Police and Workplace Health and Safety Queensland (WHSQ), the company was charged with industrial manslaughter, and its two directors were each charged with reckless conduct.

The applicable provisions

In Queensland, the offence of industrial manslaughter is enshrined in s 34C of the Work Health and Safety Act 2011 (Qld) (WHS Act) which essentially mirrors the new Victorian provisions. The maximum fine that may be imposed against a body corporate convicted of industrial manslaughter in Queensland is approximately $10 million, which is lower than under the new provisions in Victoria.  

The offence of reckless conduct brought against the two directors under s 31 of the WHS Act covers the scenario where a person, without reasonable excuse, engages in conduct that recklessly exposes another person to a risk of death, or serious injury or illness, in circumstances where the former holds a health and safety duty that is owed to the latter. The maximum fine is appropriately $600,000 or five years imprisonment. There is a similar provision in the Victorian Act.11

The decision

The company pleaded guilty to the offence of industrial manslaughter. The Court imposed a fine of $3 million, being less than one-third of the maximum penalty, against the company. 

The two directors pleaded guilty to recklessly exposing a worker to the risk of death or serious injury. They were each sentenced to a term of imprisonment of 10 months wholly suspended for 20 months. The prosecution did not allege that the directors’ offending caused the worker’s death.

In applying ordinary sentencing principles, the Court held that:

  • each defendant had committed a serious offence;
  • the company’s conduct had caused the worker’s death because of its failure to control the interaction between workers and mobile plant, including a failure to separate pedestrians and mobile plant at the workplace;
  • measures to reduce, or eliminate the risk, were available to the company and the two directors. For example, the company did not have any safety systems in place and there was no traffic management plan for the workplace. Further, a risk assessment conducted after the incident revealed that the installation of signage, plastic bollards and marked exclusion zones would have reduced or eliminated the risk. These measures were not overly burdensome or expensive; and
  • each of the directors knew of the potential consequences of the risk, which were catastrophic.  By their pleas of guilty, the directors accepted that they consciously disregarded that risk.

Conclusion

The case of R v Brisbane Auto Recycling Pty Ltd & Ors is not binding on Victorian courts. However, it does provide an early indication as to how courts may deal with workplace fatalities that give rise to the offence of workplace manslaughter. That is, the court will view the gravity and moral culpability of the offending as high, but it will still apply ordinary sentencing principles when determining the penalty to be imposed against an organisation and/or individual for the offence of workplace manslaughter. More definitive guidance will be received once there are more cases before the courts involving workplace manslaughter offences, including in Victoria.    

Most notably, the new Victorian laws do not impose new duties over and above those currently contained the Act. Instead, the new offence of workplace manslaughter highlights the seriousness of a workplace fatality, and it provides heavier penalties for a breach of the existing duties in circumstances where negligent conduct results in death.

The new legislation is a timely reminder for all company officers, including directors and company secretaries, to review current workplace safety policies and ensure workers and members of the public are in a safe environment where risks of serious injury, illness or death are eliminated, or at the very least, minimised. 

.....

1 [2020] QDC 113.
2 The offence applies to an unincorporated body or associations and partnerships.
3 An individual (including self-employed persons) may be guilty of this offence if they are not a volunteer. The offence does not apply to employees unless they are also a company officer.
4 The accused must owe a duty to the deceased person under the Act.
5 Occupational Health & Safety Act 2004 (Vic) s39G(1).
6 Ibid s144(1)(a).
7 Ibid s21.
8 Ibid s 39F.
9 See the definition of applicable duty under s 39B of the Act which excludes the duty of employees under s 25 of the Act. 
10 [2020] QDC 113.
11 Section 32 of the Act is the equivalent Victorian provision, which provides that all persons owe a duty to not recklessly endanger others at workplaces by engaging in conduct that places or may place another person who is at the workplace in danger of serious injury, without lawful excuse. If found guilty of this offence, a person can be fined up to approximately $297,000, or up to five years imprisonment. For a body corporate, the maximum fine is approximately $3.3 million.

This article may provide CPD/CLE/CIP points through your relevant industry organisation.