There is increasing pressure on governments to enact stronger Workplace Health and Safety (WHS) laws that give higher priority to worker safety and make employers more accountable for avoidable workplace deaths. The Australian Capital Territory was the first to pass industrial manslaughter laws followed by Queensland last year. In Queensland this was prompted by the four deaths arising out of the Dreamworld disaster where there were egregious lapses by the company in taking the most basic action to prevent foreseeable harm.
In a previous article we discussed the recommendations of the Review of the model Work Health and Safety laws: Final report (Final Report) to introduce an industrial manslaughter offence in the Model WHS Laws.
Pending agreement among the states and territories to amend the Model WHS Laws, state and territory governments have the discretion to enact their own responses to the Final Report’s recommendations. The Northern Territory has introduced a Bill that introduces the industrial manslaughter offence which is currently being considered by a parliamentary committee. While Victoria is not party to the Model WHS Laws, the Victorian Government responded by giving an undertaking to amend the Victorian safety laws to include a similar offence.
Proposed Amendments to the Victorian Occupational Health and Safety Act
The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) proposes amendments to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) that include creating the offence of workplace manslaughter. The Bill has passed the Legislative Assembly and has been introduced into the Legislative Council. In introducing the Bill, the Hon Jill Hennessy, Attorney-General and Minister for Workplace Safety, noted that:
The Bill sends a strong message to employers that putting lives at risk in the workplace will not be tolerated, within the framework of the duties currently owed under the OHS Act. The Bill introduces workplace manslaughter laws that will apply to an employer, self-employed person or officer who, by their negligent conduct, causes the death of anyone who is owed an existing duty under the OHS Act. This could in some circumstances include a situation where negligent conduct causes an injury or illness to another person, who later dies from that injury or illness.
The key features of the proposed new Part 5A of the OHS Act, which is based on the Queensland model of industrial manslaughter but includes broader categories of potential victims and offenders, are set out below.
The Creation of Two New Offences
The Bill creates two new offences:
- a person (but not a volunteer) must not engage in negligent conduct that constitutes a breach of an applicable duty they owe to another person and which causes that person’s death
- an officer (who is not a volunteer) of an entity (a body corporate, unincorporated body or association or partnership) must not engage in negligent conduct that constitutes a breach of an applicable duty the entity owes to another person and which causes that person’s death.
“Negligent conduct” is an act or omission that 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.
The “applicable duty” refers to the duties imposed on an employer and its directors and officers. While this will not apply to volunteer board members in schools, at the very least, school principals are considered “officers” and possibly deputy principals and business managers as well, depending on the school’s structure.
Making Organisations, including Schools, Criminally Liable
If passed into law the directors and “officers” of an organisation, which will include schools, will be criminally liable where a death is caused:
- through the actions or omissions of employees, agents or contractors who are acting within the actual or apparent scope of their employment; or
- where the organisation’s unwritten rules, policies, work practices or conduct implicitly authorise non-compliance, or fail to create a culture of compliance with its duties, and this negligence causes death.
The Bill imposes maximum penalties of 100,000 penalty units (approximately $16.5 million) for employers and 20 years’ imprisonment for individuals, consistent with the penalty for manslaughter under the Crimes Act 1958 (Vic).
Any defences available to a person in a prosecution for manslaughter under the common law or legislation would be available to a prosecution for workplace manslaughter.
The Victorian Government proposes that the offences would commence on a day to be proclaimed or on the default date of 1 July 2020.
What Should Schools be Doing?
As it is highly likely that similar offences with increased penalties will be implemented across Australia, schools should already have in place a robust workplace safety program that is regularly tested and reviewed. The role of the board and senior management is to exercise due diligence to ensure that this is the case.
If in any doubt a school should conduct a thorough review of its OHS/WHS policies and practices (and also schedule this periodically). The review should include asking the following questions:
- Have we identified all reasonably foreseeable hazards?
- Have we assessed the risk of harm from these hazards?
- What control measures have we put in place?
- Do all our employees and contractors understand their duties concerning these hazards, including the control measures?
- Are our employees and contractors being adequately supervised to ensure they are properly and thoroughly implementing the control measures?
- Are we providing our governing body with regular reports on WHS risks and incidents?