Safety Law

Do you understand the criminal offence of workplace manslaughter?

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Workplace health and safety is everyone’s business. From advice about the OH&S obligations of employees, employers, contractors, and other players in your workplace, to managing ill and injured workers on WorkCover and defending WorkSafe prosecutions.

Victorian workplace health and safety is governed by the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”), Occupational Health and Safety Regulations 2007 (Vic) (“the OHS Regulations”) and compliance codes. They set out the responsibilities of employers and workers to make sure that they are working in a safe work environment.

In this area of the law, you need to know what to do to minimise workplace accidents and if a workplace accident happens it is essential you know what to do from the outset.

We can offer support and advice at any stage – either before, during or after an incident has occurred. Compliance with the Occupational Health and Safety (OHS) laws is vital in ensuring a safe working environment.

Workplace Accident Investigations and Assessments

Defending OHS Prosecution Matters

Appearing and Managing Coronial Inquests

Risk and Hazard Identification Assessments

Training In OHS Management and Statutory Compliance

OHS Policies and Procedures

With over 48,000 workplace inspections undertaken by Victorian WorkSafe inspectors annually it is no surprise NS8 Group has been involved with assisting many employers deal with Improvement Notices and potential prosecutions.

By adopting an open and honest approach NS8 group has developed a strong relationship with WorkSafe and our clients to deliver mutually beneficial outcomes.

Our experience involves dealing with workplace fatalities through to responding to improvement notices.

We can assist business with:

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Conducting workplace investigations and assessments.

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Preparation of Workplace health and safety and human resources policies and procedures.

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Conducting risk identification assessments and identification of hazards.

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Providing training for all aspects of Workplace health and safety management systems, procedures, obligations and statutory compliance.

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Providing statutory and regulatory compliance advice.

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Injury and accident investigation and reporting.

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Preparation of occupational rehabilitation and return to work programming instruments.

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Guidance on Workplace health and safety Management Systems.

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Preparation and review of Safe Operating Procedures and Safe Working Method Statements.

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Defending prosecutions issued by regulators and appearing in Coronial Inquests.

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Providing legal briefings to Executives and Boards.

Offences under the Occupational Health and Safety Act 2004 relate to:

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Recklessly endangering persons.

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Failure to provide and maintain a safe working environment.

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Exposing non-employees to risks.

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Failure to take reasonable care and comply with health and safety requirements.

Penalties under the Act

The most likely outcome for these types of offences is a fine, and in most cases an exceptionally large fine. However, the court can impose a range of other penalties including a term of imprisonment. When considering what penalty to impose the court will consider a range of factors including the following:

  • The circumstances of the case including the nature of the breach, and the foreseeability of risk.
  • Any previous convictions and safety records.
  • The scale of harm and risk.
  • The role of the offender in the breach.
  • The offender’s conduct following the offence, further offending and/or safety upgrades.
  • The presence of any remorse.

Workplace Manslaughter

A new criminal offence of workplace manslaughter was introduced into occupational health and safety laws from the 1st of July 2020 in Victoria.

The offence applies to negligent conduct by an employer or other duty holders as outlined below, or an officer of an organisation, which breaches certain duties under the Occupational Health and Safety Act 2004 (OHS Act) and causes the death of another person who was owed the duty.

The new law aims to prevent workplace death, provide a stronger deterrent for duty holders to comply with their occupational health and safety obligations, and to send a strong message that putting people’s lives at risk in the workplace will not be tolerated.

The changes do not create additional duties; they introduce tougher penalties on already existing duties under the OHS Act. Just as the 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.

The offence of workplace manslaughter

The elements of the new 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.

Why choose NS8 Group?

We can help. We provide expert advice to employees and employers in all matters relating to employment separation and prosecuting dismissal claims.

Call our Team today. We will help you with your workplace questions.

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Fixed Fees.

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Plain Speak.

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Legal Advice.

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We take care of everything.

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We will represent you at the conciliation conference.

FAQs

FAQ’s are for information purposes only and should not be relied upon as legal advice.

Who can be charged with workplace manslaughter?
  1. Organisations and self-employed
    • Organisations and self-employed persons who hold specified duties under the OHS Act (as outlined below) can be prosecuted for the offence of workplace manslaughter. Organisations include:
      1. bodies corporate (for example, registered companies)
      2. incorporated associations
      3. statutory authorities
      4. trustee of a trust
      5. unincorporated bodies and unincorporated associations
      6. partnerships
      7. government entities.
  2. Officers
    • Officers of body corporates, partnerships, and unincorporated bodies or associations may also be charged with the offence of workplace manslaughter if their organisation holds specified duties under the OHS Act.
    • Officers are individuals at the highest level of an organisation, who have the power and resources to improve safety, including:
      1. a director or secretary of a corporation
      2. a person:
        • who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business; or
        • who has the capacity to affect significantly the entity’s financial standing; or
        • in accordance with whose instructions or wishes the directors of a corporation are accustomed to act
      3. a partner in a partnership
      4. an office holder of an unincorporated association
  3. Employees and volunteers
    • The offence of workplace manslaughter does not apply to a volunteer or an employee, unless the employee is also an officer of an organisation.
    • However, an employee can still be prosecuted for breaching existing duties under the OHS Act, including the duty to:
      1. take reasonable care for their own health and safety, and the health and safety of others, in the workplace
      2. cooperate with their employer regarding actions the employer takes to comply with OHS law
      3. not intentionally or recklessly interfere with or misuse anything provided at the workplace to support health, safety and welfare
      4. not recklessly engage in conduct that may place another person at a workplace in danger of serious injury.
What is negligent conduct?
For the purposes of workplace manslaughter, conduct will be considered ‘negligent’ if it involves:

  • a great falling short of the standard of care that a reasonable person would have taken in the circumstances, and
  • a high risk of death, serious injury or serious illness.

Negligent conduct also includes a failure to act (an ‘omission’), for example it may include 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 causes a high risk of death, serious injury or serious illness

The test is based on the existing common law test for criminal negligence in Victoria, and is an appropriately high standard considering the significant penalties for the new offence.

What are the penalties?
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.

These penalties reflect the seriousness of the offence and are designed to help prevent workplace deaths by creating a strong deterrent for organisations and individual officers against breaching their occupational health and safety duties.

How do I get help?
Contact NS8 Group to discuss your situation today.