The offence of workplace manslaughter becomes a reality in Victoria on 1 July 2020.

Introduction of the Offence of Workplace Manslaughter

The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) (Amendment Act) amends the Occupational Health and Safety Act 2004 (Vic) (OHS Act) to, among other things, create the offence of workplace manslaughter.

The legislation was passed in late November last year and comes into effect on 1 July 2020.

The new offence comprises:

• the person charged must be a body corporate or a person who is not an employee or volunteer (unless the employee is also an officer)
• 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.

On the face of it, nothing has really changed with respect to an employer’s workplace health and safety responsibilities and duties. The changes do not create additional duties but they highlight the role of decision makers at the highest level of the organisation in ensuring compliance with OHS requirements. Employees who are not also “officers”, and volunteers are specifically excluded from this offence.

However, the penalties are increasing from a maximum of five years gaol to 25 years gaol for a school’s “officer” and a maximum fine for the school increasing from $3.3 million to $16.5 million.

While the Amendment Act originally set the maximum gaol time at 20 years, this has been increased even further in a subsequent amendment to make the maximum gaol time for manslaughter (including workplace manslaughter) 25 years.

In her second reading speech in Parliament to introduce this amendment, the Hon Jill Hennessy Attorney-General, Minister for Workplace Safety and now also Minister for the Coordination of Justice and Community Safety: COVID-19 said:

"Currently, the maximum penalty for the manslaughter is 20 years’ imprisonment. This is the lowest maximum penalty for this offence within Australia."...

"It is important that our available penalties for manslaughter provide enough scope for the courts to impose sentences which can appropriately reflect the very broad range of culpability—not just at the lower end, but at the top end—for the very worst crimes—as well. The Government is not satisfied that the existing maximum penalties do that.

"Accordingly, the Bill [as it then was] will increase the maximum penalty for manslaughter to 25 years’ imprisonment. This is the highest maximum penalty in Victoria short of life imprisonment, which is reserved for the most heinous offences, such as murder."

The increase in gaol terms means that a senior executive in a school can be liable to a gaol term of up to 25 years, where the elements of the offence are proven.

Who is an Officer?

So, who is an “officer”? The aim of the offence is to ensure that decision makers in an organisation are very diligent in ensuring that the organisation fulfils its OHS obligations. While the actions of an employee (rather than an officer) may be the final step leading to a workplace death, officers are considered to have the power and resources to ensure the implementation of a compliant OHS system in the school: including providing safety information, training, supervision and monitoring, ways of working, and safe equipment and premises.
The OHS Act defines an officer as:

• a director or secretary of a corporation (unless they are a volunteer)
• 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.

The definition is borrowed from the Corporations Act, but this also applies to schools that are not corporations.

Officers and Due Diligence

This additional emphasis on officers is a concept which the states and territories coming under the harmonised Work Health and Safety (WHS) Act, have worked with for a number of years. That legislation is much clearer in relation to the officers’ “due diligence” requirements – that is, what is specifically expected of officers to ensure they discharge their duties at that highest level of decision-making in an organisation. In the WHS Act, due diligence expected of officers includes taking reasonable steps to:

• acquire knowledge and keep up-to-date about WHS matters
• understand the business, including WHS hazards and risks
• ensure the business has the right resources and processes in place, and uses those resources and processes to eliminate or minimise WHS risks
• ensure the business has the right processes to receive and respond to reports of incidents, hazards or other WHS issues, and processes to comply with any other WHS duties, and
• verify the processes and resources set out above are being used.

While this is not spelled out in the OHS Act, it would be extremely helpful for school executives to keep the due diligence requirements in mind when considering OHS matters and their own understanding of what they should know, what kind of reports they should be receiving about operational matters, and what kind of resources they should be applying to ensure health and safety in the school.

Next Steps

Clearly with the increase in penalties, schools should be even more diligent in how they conduct and monitor their compliance with their obligations under the OHS Act. For school executives this now takes on even more significance.

Schools must have a fully implemented and functioning OHS system, which covers all elements of the school and its activities. All foreseeable hazards should be identified, their risk assessed and effective control measures put in place, including training and information-sharing, as well as establishing safe ways of working, adequate monitoring and supervision, and safe premises, equipment and plant. Having an OHS program which systematically addresses all of the elements in the OHS Act is critical. School executives must have systems in place to ensure that their school’s OHS systems are operating effectively, with regular reporting on key parameters vital for peace of mind.