Million-dollar fines and 25 years’ imprisonment: What businesses need to know about new industrial manslaughter laws

Industrial manslaughter laws were introduced in Victoria last month. That means from now on, people and organisations that have substantial influence over a workplace can face criminal charges if their actions cause the death of an employee.

As a corporate lawyer specialising in workplace law and an occupational health and safety educator who visits a variety of workplaces on a weekly basis, I know there are a lot of questions among business leaders about Victoria’s new laws, as well as the relatively recent introduction of similar legislation in Queensland, Western Australia, Northern Territory and the ACT.

For instance, you may be wondering why these laws are being introduced now.

The most pressing reason is that Australia has not managed to significantly shift its workplace deaths over the past decade. Currently, the five-year average of workplace fatalities is 186 deaths across the nation, each year.

Under the laws being introduced to states, we could see hundreds of prosecutions for deaths each year. But I believe that’s unlikely. That’s because industrial manslaughter laws are already fulfilling their purpose: deterrence.

The most important thing to know about these laws is that they do not place extra duties on organisations and workplace leaders. However, they do make business leaders more accountable by increasing the penalties for failing to meet existing duties under each states’ occupational health and safety legislation.

Victoria’s penalties are a maximum of 25 years’ imprisonment for individuals and a maximum fine of $16.5 million for body corporates.

Safety compliance does not have to be expensive or scary.

In fact, I have seen compliance transform businesses in many beneficial ways, foremostly that staff are more satisfied and the company is in a better position to act as a role model within its industry.

I hope my answers to the questions below empower you to take your safety duties in your stride.

What are my existing safety duties to employees? 

Safety duties are laid out in the Victorian Occupational Health and Safety Act or in the equivalent act of your own state.

Some basic responsibilities include:

• The duty of employers to provide and maintain a working environment for employees that is safe and without risks to health;
• The duty of employers to monitor the health of employees and working conditions;
• The duty of persons with management or control of a workplace to ensure that the workplace and the means of entering and leaving it are safe; and
• The duty of manufacturers and suppliers to ensure plant or substances are safely manufactured and safe to use.

What needs to be proven for the industrial manslaughter law to apply? 

In most states, including Victoria, to be found guilty of industrial manslaughter requires that the convicted organisation or person:

• Had a duty of safety to the employee, bystander or volunteer who has died;
• Their actions caused the death; and
• In performing that action they acted negligently.

In Victoria negligence is defined as a great falling short of the standard of care a reasonable person would have taken in the circumstances or actions with a high risk of injury, illness or death to others. This includes actions that are not taken by an organisation or person.

Who can be charged under the laws?

Organisations and individuals can be charged, and multiple people can be charged in relation to one case.

Organisations could be companies, incorporated associations, statutory authorities, trustees of a trust, unincorporated bodies and associations, partnerships and government entities.

Individuals who are senior officers of a workplace can be charged. These are people at the highest level of an organisation — so directors and secretaries of corporations, people who make decisions that affect a substantial part of the business, people who have the capacity to significantly affect the organisation’s financial standing, a partner in a partnership, an office bearer in an unincorporated body.

Employees cannot be charged under the laws unless they perform the role of a senior officer.

What should my business do in light of these laws?

• As a business leader, you must ensure you understand very clearly your obligations under your state’s OHS act.
• Conduct an audit of the risks of your workplace and ask yourself. Have you limited each risk as far as reasonably practicable to reduce the risk of workplace injury?
• Create a safety management plan that covers the risks you have identified and the measures that are in place.
• When introducing people to your workplace ensure that an OHS induction is completed incorporating the safety action plan.
• Ensure that you provide the necessary support for staff to enact the safety action plan. For example, providing training around the measures in the plan, encouraging staff to take more time to complete riskier tasks or providing them with appropriate safety gear. Document these actions.
• Record the occurrence of safety incidents and frequently review trends and occurrences to come up with further safety measures to add to your plan.

Remember that having a safe workplace is one thing, but if you enter court proceedings you will need to prove the safety of your workplace. This is where documentation comes in handy.

What are some steps I can take to make my work areas safer?

Creativity is a great resource when coming up with ways to limit risks. In general, it’s better to come up with a solution that requires a simple, permanent change to your workspace or your work processes. Asking your staff to remember to do something extra every time they perform a task is a less reliable solution.

At one worksite, which I frequently use as an example in OHS training, low-cost measures have really made a world of difference.

• Work that does not require the use of machines is performed in a separate room to the machines.
• Fluorescent tape and plastic bollards are used to mark out pedestrian walkways.
• Mirrors have been hung in areas of high pedestrian and forklift movement and witches hats are used to separate traffic moving in different directions.
• Staff are directed to turn the light on whenever they enter a workspace and the last person to leave turns it off, so it is known where people are working.
• Each day, managers conduct five- to 10-minute ‘toolbox’ meetings so staff can be reminded of safety protocols and so workers can bring up any safety concerns or new risks.

For more suggestions, I really recommend getting in touch with Work Safe Victoria or your relevant state-based safety body. I also recommend reaching out to mentors in your industry and getting in contact with educational organisations that can give you and your staff hands-on training in safety management.

These new laws mean reaching out to improve your business is definitely worth your time and energy.

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