NFPs face penalty of up to $16.5m or 20 years in prison for officers under new “industrial manslaughter” laws

Victoria’s new industrial manslaughter laws came into effect on 1 July 2020. The new laws aim to prevent workplace death and provide a stronger deterrent for duty holders to comply with Occupational Health and Safety (OHS) obligations.

These laws apply to not-for-profit clients such as schools and charitable organisations, just as OHS laws do. They are broad, as they cover conduct by both the organisation and its officers, and have severe consequences. Breaching OHS duties which lead to a person’s death can result in heavy financial penalties being ordered and even jail terms for officers of an organisation.

Given the heightened apprehension around workplace safety and COVID-19, it is crucially import that workplace health and safety policies and procedures are up to date and training is provided where necessary, to ensure all appropriate persons in your organisation are made aware the new industrial manslaughter laws.

The Act

The Workplace Safety Legislation Amendment Act (Workplace Manslaughter and Other Matters) Act 2019 (the Act) amends the Occupational Health and Safety Act 2004 (OHS Act) in Victoria to create industrial manslaughter laws that apply to employers, self-employed persons or officers who, by their negligent conduct, cause the death of anyone who is owed an existing duty under the OHS Act, including employees and members of the public.

The Act will not operate retrospectively, this means only a death that occurs after 1 July 2020 will be considered. However, there is no time limit for safety prosecutions initiated by WorkSafe Victoria. The Act carries significant implications, with the suggestion that negligence could extend to a situation where an employee suicided as a result of an employer’s negligent conduct.

What does the Act apply to?

The act lists “applicable entities” in section 39G (3) of the Act, which includes:

  • Bodies corporate;
  • Unincorporated bodies and unincorporated associations;
  • Incorporated associations; and
  • Trustees of trusts.  

The Act applies to directors and officers of organisations (other than volunteers or employees), unless the employee is also an officer. “Officers” who are not directors would include:

  • Board secretaries;
  • CEOs – a person who participates in the making of decisions that affect a substantial part of the organisation’s business (i.e. members of the C-suite executive team); and
  • CFOs – a person who has the capacity to significantly affect the organisation’s financial standing (e.g. Chief Financial Officers); or
  • A Senior Manager or person of significant influence – a person in accordance with whose instructions or wishes the directors of a corporation are accustomed to act; or
  • An office holder of an unincorporated association.

We note that an employee is still able to be prosecuted for breaching existing duties under the OHS Act such as the duty to take reasonable care for their own health and safety and the health and safety of others in the workplace.

What is negligent conduct?

Negligent conduct is a ‘greater falling short’ of the standard of care that would have been taken by a reasonable person in the circumstances, and involves a high risk of death, serious injury or serious illness. The test for whether conduct amounts to negligence looks at what a reasonable person in the situation of the accused would have done in the circumstances. This conduct includes failure to act, such as when a person:

  • Does not adequately manage, control or supervise its employees; or
  • Does not take reasonable action to fix a dangerous situation, where failing to do so results in death, serious injury or serious illness.

What are an organisation’s health and safety duties?

Additional duties are not created as a result of the law. Rather, tougher penalties apply to already existing duties under the OHS Act. Thus, an organisation will be found to have breached its standard of care if there has been a breach of the applicable duties under the OHS Act, which include (but are not limited to):

  • To maintain a safe working environment for employees, including independent contractors;
  • To monitor health of employees, conditions at any workplace and provide information to employees concerning health and safety at the workplace;
  • To keep information and records relating to the health and safety of employees and engage suitably qualified people to provide OHS advice to employees;
  • To ensure, so far as reasonably practicable, that persons other than employees (i.e. members of the public or clients) are not exposed to risks to their health and safety due to their conduct;
  • Not to recklessly engage in conduct that may place another person at a workplace in danger of serious injury; and
  • To ensure that a workplace and the means of entering or leaving it are safe and without risks to health.

What constitutes a breach of duty of care?

An organisation is deemed to have breached an applicable duty which amounts to industrial manslaughter in circumstances where:

  • There was a high risk of death, serious injury or serious illness;
  • The act that breached the duty of care was committed consciously and voluntarily; and
  • The conduct causes an injury or illness to another person, who later dies from that injury or illness. The conduct must be such that an ordinary person would hold it to be the cause of death. Workplace manslaughter may apply even when death of a person occurs sometime after the relevant incident e.g. where an employee has been exposed to asbestos and they develop an asbestos-related disease.

Penalties

The penalties are severe – corporations can be fined up to $16.5 million (100,000 penalty units) and individuals can face up to 20 years’ in prison.

What can your organisation do?

Just as the OHS law currently provides, employers and duty-holders should stop to think about the risks involved in the conduct of their business, and what steps can be taken to mitigate those risks. An organisation therefore should ensure it has the right systems, controls and equipment in place and a workplace culture directed towards improving safety in the workplace. Accordingly, we recommend organisations take the following steps:

  • Ensure they do not knowingly expose employees, subcontractors or clients to persons who have been diagnosed with COVID-19. There are risks associated with deliberate exposure to COVID-19 if it results in death or serious injury;
  • Review all the potential hazards and risks (physical and psychological) in your workplace, and manage within a risk management framework;
  • Conduct a formal review of your safety systems and controls to ensure they are effective and a correct reflection of your processes. Review your incident action plans and responses;
  • Review all your existing policies and ensure they are complete, including anti-bullying and harassment policies;
  • Examine your health and safety leadership and culture for possible negligent practices;
  • Provide training so that all directors, senior officers and managers understand the implications of the legislation;
  • Consider your business insurance arrangements to ensure they cover workplace health and safety incidents; and  
  • Train all employees in the safe practice of high-risk activities. Regularly refresh the training to ensure ongoing competence and keep detailed reports and records. Ensure employees understand safety obligations and can apply their knowledge.

How we can help

If you believe your organisation may be exposed due to policies and procedures which have not been updated regularly or recently, or your staff have not received appropriate training, Moores can assist with providing workplace training.

We offer a range of training services which can be delivered in person (adhering to social distancing requirements) or in an online workshop or webinar format.

For more information or if you are interested in arranging some workplace training, please do not hesitate to contact us.