New workplace manslaughter laws take effect in Victoria

On 1 July 2020, workplace manslaughter laws came into effect in Victoria. While these new laws do not create additional duties, they do introduce tougher penalties for businesses and individual officers on existing duties under the OHS Act.

What does this mean for retailers operating in Victoria?

If you are already complying with your obligations under the OHS Act, and you continue to do so, you avoid workplace manslaughter. However, if you breach certain duties as a business or individual officer, and the breach involves negligent conduct and causes the death of another person who was owed the duty, the workplace offence can apply.

The elements of workplace manslaughter offence are:

• the person charged must be a body corporate or a person who is not an employee or volunteer
• they must have owed the victim a specified duty under the OHS Act
• they breached the duty owed by negligent conduct
• the breach of the duty caused the death of the victim, and
• if the person charged is a natural person they must have acted consciously and voluntarily when breaching the duty owed.

What does negligent conduct look like?

A person or business’s conduct would be considered ‘negligent’ if it involves a significant deficiency in the standard of care that a reasonable person would have taken in the circumstances, and a high risk of death, serious injury or serious injury. It also includes an omission (failure to act).

Example of negligent conduct

A supervisor for a retail distribution centre reports to senior management their concerns about a lack of traffic management planning and risk controls at the workplace. The supervisor submits a business case to the senior management team proposing to review the current traffic management practices and implement various controls in accordance with health and safety regulator guidance.

In the business case, the supervisor includes details of near miss incidents that have occurred in the past year and highlights the need to engage a suitably qualified person to give advice on the risk and recommended control measures. It includes an indicative cost for the review and implementation of a traffic management plan.

The senior management team note the business case at a senior management meeting, however do not prioritise it as a consideration and action. The supervisor follows up with senior management multiple times over the next 6 months, however, senior management do not provide authorisation to proceed with the review and implementation. During the daily operations of the business, an employee is struck by a forklift while they are carrying out picking and packing activities, and is fatally injured.

In this scenario, the senior managers may be prosecuted for workplace manslaughter as it is the senior manager’s role to make decisions regarding how work can be undertaken and influence what safety procedures are used. The negligent conduct of the senior managers in actively ignoring the advice of the supervisor and failing to ensure appropriate resources and processes are used to eliminate or minimise risks to health and safety could see the senior manager(s) prosecuted for workplace manslaughter.

What are the penalties associated with workplace manslaughter?

If convicted of workplace manslaughter, the following penalties apply (as at 1 July 2020):

• a maximum of 25 years imprisonment for individuals; and
• a maximum fine of $16.5 million for body corporates.

Is Victoria the only State with workplace manslaughter laws?

No. Victoria is not the first State to introduce these laws. Industrial manslaughter laws are currently in place in Queensland and the ACT and other States and Territories are looking to introduce similar laws.

Australia’s first prosecution under industrial manslaughter laws occurred in QLD this year. Two owners of a Brisbane wrecking yard were handed suspended jail terms over the death of a 58-year-old worker who was crushed between a reversing forklift and a truck. The company was fined $3 million [R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113].

WHS Health Check

These laws are a timely reminder for retailers to review and reassess health and safety risks in the workplace. Retailers should review the attitude and approach to health and safety in the workplace, and the effectiveness of their health and safety practices.

• What is the attitude towards health and safety culture within your retail business?
• Are senior managers aware of their due diligence obligations?
• Is there a specific plan in place around how your business is working to improve WHS?
• When was the last time you reviewed the operational activities and identified those that are high-risk in your business?
• Are there policies, procedures and practices in place to mitigate these risks?
• How are WHS responsibilities communicated across the business?
• What is your business doing to ensure the physical and psychological health of workers?
• What is your safety reporting culture?
• How are you measuring health and safety performance?
• What is your organisation doing to continuously improve health and safety practices?