By Charles Power

The Victorian Government has released its proposed legislation to insert criminal manslaughter offences in to the Victorian Occupational Health & Safety Act (OHS Act).

This would create a new criminal offence of workplace manslaughter, being conduct of an employer or officer of the employer that is negligent and causes the death of an employee or member of the public.

Compliance with OHS Act duties is a complete defence

In the case of the employer, the offence will only be committed if the employer breaches a duty owed under the OHS Act. An example, is the employer’s duty to, so far as is reasonably practicable, provide and maintain for its employees a working environment that is safe and without risks to health.

OHS Act duties are owed by employers to employees, contractor’s employees, sole traders, and any members of the public that may be in or near the workplace.

If the employer complies with its duties under the OHS Act it will not commit this new offence.

What is negligent conduct?

An employer’s conduct will be negligent if it greatly falls short of the required standard of care, and, as a result of the conduct, there is a high risk of death, serious injury or serious illness.

The offence can be committed by an employer that is not an individual person; i.e. bodies corporate, partnerships, unincorporated bodies and unincorporated associations.

In determining whether such an organisation is negligent, the focus will be on what the employer did or did not do compared with what a reasonable employer would have done or not done in the same circumstances.

Some of the ways an organisation might engage in negligent conduct causing death include:

• its unwritten rules, policies, work practices or conduct implicitly authorised non-compliance, or failed to create a culture of compliance, with its OHS Act duties, and death resulted from the negligent conduct;
• a number of individuals within the organisation, acting with the actual or apparent scope of their employment or authority of the organisation, did or did not do things that, when aggregated, amounted to negligent conduct of the organisation; and
• the organisation failed to take steps to prevent or minimise the risk of death, serious injury or serious illness.

The liability of an organisation will be reduced if a ‘rogue’ employee acts contrary to the policies and procedures of the body corporate.

Who is exempt?

Volunteers and employees who are not ‘officers’ will not be liable to commit the new offence of workplace manslaughter.

When is an officer negligent?

An officer is a director or an employee who participates in making decisions that affect the whole, or a substantial part, of the business of an organisation.

Relevant matters to determining whether an officer is negligent include:

• what the officer knew about the matter concerned;
• the extent of the officer’s ability to make, or participate in the making of decisions that affect the body corporate in relation to the matter concerned; and
• whether the contravention by the body corporate is also attributable to an act or omission of any other person.

Operation outside Victoria

Employers and officers situated outside Victoria may commit the offence of workplace manslaughter where the relevant conduct results in a workplace fatality in Victoria.

Similarly, the fact the negligent conduct causes a workplace fatality outside Victoria will be no defence.