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CHANGES TO WORKPLACE MANSLAUGHTER LEGISLATION IN VICTORIA
by John Kilgour, CEO, Civil Contractors Federation Victoria
On 26 November 2019, the Victorian Parliament passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (WM Bill), which will amend the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and introduce the workplace manslaughter offences.
In Victoria, both businesses and officers can be charged with workplace manslaughter. Where a business – which includes companies, associations and partnerships – is found guilty, they could face fines of up to AU$16.5 million. Individuals who conduct a business (but not a volunteer), together with officers, could face up to 20 years jail if found guilty.
While no commencement date has been announced for the workplace manslaughter offence, it is expected that it will apply to any negligent conduct occurring on or after 1 July 2020.
It is important to appreciate that not every act or omission causing a workplace death will amount to workplace manslaughter. The act or omission must involve criminal negligence. This requires “a great falling short of the standard of care that would have been undertaken by a reasonable person in the circumstances” where there is a high risk of death, serious injury or serious illness (section 39E of the WM Bill). This is an emotional issue and there are community expectations that the new offence will lead to prosecutions and jail terms. CCF’S VIEW ON THE NEW OFFENCES
A person will be guilty of workplace manslaughter where they: 1. Engage in negligent conduct, and 2. That conduct amounts to a breach of the OHS duty owed to another person; and 3. That conduct causes the death of the other person (section 39G (1) of the WM Bill) Section 39G (2) of the WM Bill creates a similar offence where it is an officer’s negligent conduct that causes the person's death.
The Victorian Government hopes that the deterrent of workplace manslaughter, together with the threat of imprisonment, will provide a greater incentive for businesses to improve workplace safety and help stem the number of workplace deaths. While any workplace death is lamentable, it is CCF’s held view that the introduction of this offence won’t enhance safety outcomes, but will deny fair legal process, and have detrimental effects on investment and employment in our industry.
CCF made a series of representations and engaged extensively with other membership bodies, the State Opposition and Crossbench members, seeking amendments to the proposed Bill in our push for a better, fairer and, above all, safer industry in this state. CCF and other industry groups had significant concerns about the content of the proposed From 2020, businesses and officers in Victoria whose negligent conduct causes a workplace death may be guilty of workplace manslaughter under sweeping new legislation introduced by the Andrews Labor Government. Here, the CCF takes a closer look at how this change could impact civil construction businesses, and provide a rundown of what you need to know.
Bill and the approach taken by government in its engagement with industry. The offence excludes most employees, which is inconsistent with the spirit of the OHS Act, where workplace health and safety is the duty and responsibility of all parties.
PARLIAMENTARY DEBATE
Representations made by CCF were referenced during parliamentary debate by the Shadow Minister for Industrial Relations & Workplace Safety, the Hon Nick Wakeling, including the: ♦ Decision to carve out employees in the offence ♦ Lack of engagement with industry by the State Government where CCF was not extended the courtesy of a response to our concerns, and ♦ Placement of the offence in the OHS Act, with individual privilege against self-incrimination compromised by the obligation to produce documents when questioned during a workplace incident investigation CCF seeks to work with all sides of government in an effort to deliver safer outcomes in the workplace. We believe there is a strong argument for re-drafting or amending this Bill regarding the application of the Victorian Charter of Human Rights to the proposed workplace manslaughter offence.
We are encouraged by the tabling of this draft amendment that our voice is being heard and that the proposed redrafting of the Bill will ensure that these laws are fair and equitable, and deliver improved workplace safety outcomes.
PREPARATORY MEASURES YOU CAN TAKE
With the introduction of this offence, it is important that we keep calm and carry on with business. That said, as business owners and leaders, there are steps you can take in preparing your business for the introduction of the workplace manslaughter offence.
1. Ensure that your business and officers understand the critical health and safety risks in operation and have verified that controls for those critical hazards and risks are implemented and working effectively. Prosecutions will result in a failure to consult, coordinate or co-operate on health and safety matters with other duty holders. 2. Update your business incident investigation protocols to increase focus on investigating serious near miss incidents. The timely close out of investigation action items for potentially fatal near misses is critical to preventing the next fatality from occurring. 3. Establish fatal incident response protocols in your business. This includes conducting incident response training and emergency drills so that you and your personnel are prepared for complying with your legal obligations in the events following a notifiable incident.
During 2020, CCF will be conducting a series of workplace manslaughter workshops with its legal advisors, Lander & Rogers, in preparation for the introduction of this new offence. For more information on this subject or the upcoming workshop series, please contact the CCF team on 1300 DIAL CCF or email support@ccfvic.com.au.
About Civil Contractors Federation (CCF) Civil Contractors Federation (CCF) is the peak industry body representing Australia’s civil construction industry with more than 2,000 contractor and associate members nationally and over 520 of these based in Victoria. CCF members are responsible for the construction and maintenance of Australia’s infrastructure, including roads, bridges, pipelines, drainage, ports and utilities. Its members also play a vital role in the residential and commercial building industry by providing earthmoving and land development services including the provision of power, water, communications and gas.
