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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Industrial Manslaughter (Vic)


Industrial manslaughter occurs when a person dies at work due to negligence by an employer. In Victoria, it is called workplace manslaughter and is a relatively new offence, having been added to the Occupational Health and Safety Act 2004 in 2020. No employer has yet been prosecuted for the offence.

Industrial manslaughter law

The law in Victoria was introduced to prevent workplace deaths, deter employers from breaching their duties to employees, and to reflect the seriousness of conduct that risks lives in the workplace.

Section 39G(1) defines workplace manslaughter as when a person engages in conduct that is negligent, constitutes a breach of a duty owed to another person, and causes the death of the other person. The maximum penalty is 25 years imprisonment for a person, or a fine of 100,000 penalty units ($16,522,000) for a company. The section does not apply to a volunteer.

Duties

An employer must ensure a workplace that is safe and without risks to health, so far as this is reasonably practicable. This duty of care includes:

  • providing and maintaining safe equipment and systems of work;
  • arranging for the safe use, handling, storage and transport of equipment or substances;
  • maintain each workplace in a condition that is safe and without risks to health;
  • provide adequate facilities for the welfare of workers;
  • provide information, training, instruction and supervision needed to protect the health and safety of workers;
  • monitor worker health and workplace conditions to prevent illness or injury to workers;
  • provide information about health and safety at the workplace, including key workplace health and safety contacts;
  • keep information and records about the health and safety of workers;
  • employ or engage workplace health and safety experts to provide advice to them about the health and safety of employees.

In deciding what is “reasonably practicable”, factors to be considered include:

  • the likelihood of the particular hazard or risk eventuating;
  • the degree of harm that would result if the hazard or risk eventuated;
  • what the person involved knows, or ought reasonably to know, about the hazard or risk and any ways to eliminate or reduce the hazard or risk;
  • the availability and suitability of ways to eliminate or reduce the risk;
  • the cost of eliminating the hazard or risk.

Conduct

Conduct can be an act or a failure to act. It is considered negligent if it involves:

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

Industrial manslaughter lessons for business

A workplace death can have long-lasting effects on the person’s family, work colleague and the company’s reputation. Companies can take steps to ensure their workplace is safe, such as:

  • reviewing and updating (where needed) health and safety policies and procedures;
  • conducting a safety audit to identify potential hazards and safety risks;
  • reviewing all safety systems and controls to ensure effectiveness;
  • offering regular health and safety training sessions and advice to all employees;
  • ensuring all employees are adequately qualified and trained for their roles;
  • ensuring a proper safety induction for all new employees;
  • preparing, filing and reviewing records on workplace health and safety;
  • reviewing insurance coverage for the company;
  • fostering a proactive approach and a safety culture at the company.

Industrial manslaughter legislation in other states and territories

The Australian Capital Territory was the first state or territory to introduce industrial manslaughter as an offence, in 2004. It carries a maximum fine of 2000 penalty units ($320,000 for a person, or $1,620,000 for a business), or 20 years imprisonment, or both.

Queensland introduced industrial manslaughter as an offence in 2017. The maximum penalty is 20 years imprisonment for a person, or 100,000 penalty units ($13,345,000) for a company.

The Northern Territory also enacted industrial manslaughter law in 2020. The maximum penalty is life imprisonment for a person, or a fine of 65,000 penalty units ($10,270,000) for a business.

Western Australia also enacted industrial manslaughter law in 2020. The maximum penalty is 20 years imprisonment for a person, and a fine of $5,000,000, or for a business, a fine of $10,000,000.

As of June 2021, New South Wales was debating a bill to create an industrial manslaughter offence.  South Australia and Tasmania were not planning to introduce specific industrial manslaughter legislation. Employers in these places can still be prosecuted for workplace deaths under criminal manslaughter laws and general workplace safety laws.

For advice or representation in any legal matter, please contact Armstrong Legal.

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