Victoria's new workplace manslaughter offences

Rob Kelly: Good morning everybody. Welcome and thank you for being part of WorkSafe

Victoria's webinar on understanding workplace manslaughter. I'd first like to start by acknowledging the traditional owners of this land and give my respect to elders past and present. I'd also like to welcome elders or members of other Aboriginal communities who are here today.

Hello, my name is Rob Kelly. I'm the Director of Specialist Services in WorkSafe and I'll be your host for the webinar today. I'd now like to introduce our panel of three today and I'll first lead off with Dmitry Rozkin.

Dmitry is the Director of WorkSafe's Legislation Policy and Information Services. Good morning Dmitry.

Dmitry Rozkin: Morning Rob.

Rob: Then we have Gordon Cooper. Gordon is the Director of WorkSafe Enforcement Group. Good morning.

Gordon Cooper: Hi Rob.

Rob: And finally we have Adam Watson. Head of Operations and Emergency Management in WorkSafe. Good morning Adam.

Adam Watson: Good morning Rob.

Rob: So today you'll hear about the new workplace manslaughter laws. They come into effect of 1 July this year so not that long to go.

You'll also hear what they mean for you and where you can go to get further information or for further support.

Now before I get into it, a few housekeeping matters.

This legislation is new in Victoria and we're going to give you an overview of the new laws and what they mean for you.

Now given they're new we don't have any precedences or case studies that we can refer to to give you responses to any hypotheticals or specific scenarios and also we're not going to  be able to give you a specific legal advice.

And you'll also notice today that we  have social distancing in place.

We have one person for four square meters and a separation distance of 1.5 as is the need for today.

One thing to remember any information regarding the new laws that we talked about today will be available on WorkSafe's website before the commencement of the legislation.

With that we'll get into it. 

How did the new legislation come about, can you talk us through that?

Dmitry: Of course Rob. In May 2018 the Labor government the Andrew's Labor government made an announcement that if re-elected they were to introduce the new industrial manslaughter offence into the statute book.

So, following the election of November 2018 with the new re-elected Andrew's government the work commenced on creating and drafting a new offence  of industrial manslaughter.

As part of that significant consultation took place, a number of consultative committees were established, including the family reference group and the offence was finally introduced and then passed by both houses of Parliament in late November 2019.

Rob: You mentioned there about the family reference group what is that and why is it important as part of the consultation?

Dmitry: A family reference group was established to give voice or voices to families of the deceased workers.

So it was very important to the government to make sure that cohort of people was heard, that their issues were taken into account  and their views were obviously valued.

Rob: Can you talk us through what does the new legislation aim to do?

Dmitry: Of course, well there's two purposes to the legislation. The main purpose is of course to prevent workplace death in the future and the second purpose it's all about to send the deterrence message to the community that compliance with occupational health and safety laws is important.

Rob: So tell me a bit more about deterrent. What do you mean by deterrent?

Dmitry: Deterrent effect essentially with the significant penalties and that are attached to this provision it sends a message to the community that if you do not comply with your obligations and somebody dies as a result of your non-compliance you can be prosecuted and you will be prosecuted for a significant criminal offence.

Rob: So can you talk us through, when will the workplace manslaughter actually apply?

Gordon: From July the 1st this year the new offence will come into effect and that means that for any fatality that occurs at a worksite after July the 1st or is connected with the conduct of somebody's business basically, then they can be investigated and scoped as a workplace manslaughter. At the moment that's not that's not the state of the law but it will be in about six weeks time.

Rob: So you mentioned there it's a timeframe in the workplace, who does it impact, who's it aimed at?

Gordon: Principally, it's aimed at people who are obliged to maintain a safe working environment for employees, so and employers. It's it's aimed at self-employed people and it's also directed at people who design and manufacture plant and equipment as well.

So it encompasses most of the current principal duties, with a couple of exceptions.

Rob: So we hear the terms organisations, officers or employers that's the group that it's particularly aimed at?

Gordon: The amended Act refers to a 'person' who owes a duty or to 'officers' basically and an officer is a person who the term officer is borrowed from the Corporations Act.

I won't go into specific details about that, but basically an officer is a person who has the means to affect a safe work culture. So they might have the control, the day-to-day control of the worksite, for instance or they might have the resources to be able to affect the control. So somebody typically quite senior in a business would be an officer.

Rob: So you mentioned it commences on the 1st of July. If I'm complying with the legislation now, will I be compliant 1 July and post that?

Gordon: Well firstly I'd say if you're complying with the legislation now then that's absolutely terrific and I think you should continue complying with the legislation. If you're complying with the legislation now then there will be nothing to worry about after July the 1st.

What the new offence will do is essentially bolt on additional consequences for breaches of existing duties, so they're the duties that I ran through briefly just a moment ago, but effectively not much changes in terms of what you're obliged to do as an employer for instance but what will change is the consequences for non-compliance with your duties.

So that's really the threshold is that you've got duties at the moment and you need to continue to comply with them, and if you don't the consequences can be a lot more severe than they currently are.

Rob: Can you talk us through, I think we've covered part of this, who can be charged with workplace manslaughter?

Dmitry: Of course, so the laws are designed primarily to capture directors and secretaries of the companies, partners of the partnership, trustees or the trust and that may well be a company or an individual but more importantly the persons
who make significant decisions in the running of the company, including
potentially financial decisions of the company.

There are two significant carve outs to who cannot be charged, and employees of a company and volunteers are specifically exempted from the operation of the industrial manslaughter act.

Rob: Could you explain that because we have spoken about the organisations and officers, and businesses or employers. Can you explain why they've carved out the likes of employees or carved out the likes of volunteers?

Dmitry: Volunteers and employees do not have the management and control of a workplace, so the legislation is designed for to specifically target people who are in a position of power who can affect the change in the company, who should and
must comply with the obligations under the Occupational Health and Safety Act.

Rob: So what are the penalties if you're actually convicted under this new law?

Adam: The penalties are quite significant as Gordon indicated earlier, Rob, so a person found guilty of an offence under industrial manslaughter laws is subject up to twenty years imprisonment or if it's a company, fines of up to $16.5 million dollars. So it's quite a significant penalty.

Rob: So I understand that currently under the legislation there's a lower penalties but also you can still be convicted and say serve jail time, that sounds like it's a significant increase?

Adam: It is and to give everybody an appreciation of what that actually looks like, currently under the Occupational Health and Safety Act, for an individual, that recklessly endangers life, the maximum penalty currently is up to five years imprisonment or a fine of around $297,000 maximum fine, and for an organisation or a company that breaches the laws it's up to $3.3 million so it's quite a significant increase.

The new penalties are designed are aligned directly to manslaughter provisions in the Crimes Act, so it's it's very much the same proposition.

Rob: And we've heard here about deterrence we've heard about prison term and very, very high fines, so just to recap if you're following OHS laws now, do you need to make any changes by 1 July or post 1 July?

Adam: If you're following OHS requirements and legislation now, come July 1 you just need to keep on doing what you're doing currently.

What this does do is it provides a really good opportunity for everyone to have a look at your organisations, to have a look at your businesses, work processes and just have a really thorough understanding of what, what it is that could be done to improve things but if you're doing the right thing essentially now, you'll be doing the right thing on July the 1st.

Rob: So complacency is an important piece of this as well that you may be complying now but complacency as you go forward, reviewing what you're doing?

Adam: Yeah and in respect to occupational health and safety, complacency is not a word that goes with that at any time. We already have very strong occupational health and safety legislation here in Victoria.

This is simply highlighting the importance of maintaining a health and safe workplace but also helps, hopefully, helps everybody appreciate that complacency can never be arrived at when it comes to workplaces and your duties as an employer.

Rob: We've talked about penalties we've talked about the employers. One of these we keep hearing is duties.

Can you remind us what those duties actually are?

Gordon: Yeah actually Adam just touched upon a duty right there when he was talking about complacency because there is a duty under the Act for employers to monitor the health, monitor the conditions of employees to make sure that the workplace stays, stays safe for employees and that there's no risks to health so that I think is it goes exactly to Adam's point which is that there's no room at all for complacency.

So one of the duties of an employer is to monitor for health risks or risks to safety. Another one is generally as a more broader duty or expressed in more broader terms which is to provide and maintain a safe workplace and that's free from risks, and they obviously go hand in glove.

There's also a duty for self-employed people as well so self-employed people have to have, have to have in mind the risks that might come with the conduct of their own work, so for instance self-employed tree lopper for instance would have to have a think about how the way that she or he conducts the tree lopping business might affect people in the zone of of the tree lopping, just as an example.

There are also duties which are probably less likely to arise on a day-to-day basis but they apply basically for the manufacture and supply,and design of plant and equipment too. 

That's probably a little bit non-mainstream, but the principle one and the one that affects most people I can certainly say from an enforcement perspective, is the duty to provide as far as it's reasonably practicable to do so a workplace that's free from health and safety risks.

And the key there Rob I think is the term as far as reasonably practicable. It's important I think to bear in mind that the obligation to regarding risks to health and safety isn't an absolute one, in the sense that, a duty holder doesn't have to ensure that there is absolutely no risk at all and that there's no chance at all of any harm befalling someone, but what they do have to do is take reasonably practicable steps to mitigate those risks and what that means, I think, in a practical sense is that to comply with your obligations you have to think about what those risks are so you can't take reasonably practicable steps unless you've thought about what it is that you do and where the risks arise.

So I would describe the obligation that the law imposes as, a pretty minor one, in some respects — the consequences  might be getting bigger but what the law is asking is that people turn their mind to the way we conduct our business, could this hurt somebody what can I do to make sure that that happens and for my part, Rob, I think that's a pretty small  ask to make of people.

Rob: I heard you say there about so far is reasonably practicable and we spoke  about complacency and we spoke about reviewing, so if I'm doing something now and I'm controlling a risk, do I just let set and forget and move it forward or what does the sense of so far as really practicable mean?

Gordon: Well I think that's where the duty to monitor comes in and it's also obviously sort of embedded within the the idea of providing a workplace  that's free of risks to health and safety, is that you are constantly monitoring and by that, whenever you change your work practice, for instance, you'd want to have a bit of a think about whether or not that changes some health or safety implication or there's some health or safety implication, and then what can be done to mitigate that, so usually it might be, perhaps I shouldn't say usually, but an example might be, for instance, if you know that you're going to be working at a particular construction site and the construction needs to be conducted in a particular way, you might want to have a think about whether or not the method creates some risk to people who might be passers-by or people who may be employees working on the building site, and then  what you, what you can do to address that risk.

Rob: You mentioned already that the changes come into effect of 1 July less than just over a month from now. Can someone be prosecuted if an incident occurred prior to 1 July?

Gordon: They can be prosecuted, but they won't be prosecuted, they can't be prosecuted for a workplace manslaughter, so if for instance a fatality were to occur today, and I certainly hope that that doesn't happen, but if one were to occur today then we would certainly conduct an investigation, as we always do, into workplace fatalities.

We would work with Adam's team, we would work with the Victoria Police and we would, eventually of course, work with the Office of Public Prosecutions if it looked like we were going down a prosecution path, but we would have a look at any workplace fatality that were to occur up to the 1st of July with the current law in mind.

From the 1st of July what will change is that we will be having a think about the things that could make that particular death a workplace manslaughter and so the additional things that we'll be having I think about will be not only whether there's a breach of an existing duty, which is what we would think about now, but we would have a think about whether or not that was caused by negligence on the part of the duty holder and whether or not that in fact caused the death, so we that's the chain for this offence.

Rob: Just one there you mentioned about negligence. I'm sorry that I'm holding it a bit on you for this one but negligence, what does that mean?

Gordon: That's tricky but I'll try and keep it as as simple as I can. Basically an employer or another duty holder would be negligent for the purpose of this new Act if they, if they don't do what a reasonable person in the circumstances would have done, in the same circumstances so it's in terms of the criminal culpability, it's a bit lower than recklessness which is where you would turn your mind to a risk and say oh well I know that risk exists but I'm going to proceed anyway. That's recklessness, whereas negligence is a you should have turned your mind to it and any reasonable person in your situation would have turned your mind to it and that I think goes back to the monitoring point that we were discussing a bit earlier too.

Dmitry: Yeah I just wanted to add something to what Gordon said as well. I think it's important to know that from the 1st of July if the investigation for industrial manslaughter occurs it doesn't mean that the person will necessarily only be investigated for the industrial manslaughter. The person can well be investigated for a number of other offences alongside the industrial manslaughter and potentially charged with a number of offences alongside the industrial manslaughter.

Adam: That's a really good point Dmitry. Industrial manslaughter does not replace the already very strong legislation that's in place in Victoria, it simply places a significant penalty uplift should the circumstances we've just discussed come to fruition.

Rob: Thank you, thank you for that. Just to recap, the new laws will come into effect on 1st of July, just over a month away and it aims to prevent workplace deaths but also provides stronger deterrent to organisations, employers or officers who breach their occupational health and safety obligations.

What I'd like to do now is just go around the panel and finish with one final message we may have.

Dmitry: Well my message for the day is that if you are currently compliant with your occupational health and safety obligations, you will be compliant on the 1st of July.

Gordon: I would agree entirely with what Dmitry just said. I would add into this that I think there's no reason for anybody to panic about the new laws.

I've heard a lot of employers in particular and self-employed people being quite worried about what this might mean but if people are compliant then there's nothing to panic about.

I suppose part b of my response to that would be that we'll also make no apologies whatsoever for pursuing people who do the wrong thing and that has been our position, is our position currently and that's not going to change so we will absolutely be investigating all fatalities with the, from the perspective that there may be an element of where workplace manslaughter after the 1st of July.

Rob: Thank you, and Adam?

Adam: Thanks Rob, the key message from me is these new laws don't actually impose any new duties in Victoria. These new laws simply put much tougher penalties  on serious breaches of our current legislation and that's just something to be mindful of.

Rob: Thank you.

Adam: Thank you.

Rob: Thanks everybody. We are working to ensure that employers and the Victorian community are informed about the new laws but also how it affects or impacts them and where they can go to get further information.

WorkSafe's website is a centre for that style of information and you'll find there guidance material and links to industry specific resources that will help you reduce risks at your workplace.

An information sheet tailored for employers so they know what they need to do to ensure they continue to comply will be available on our website before the commencement of the legislation.

And just to close out on behalf of WorkSafe the panel  and myself thank you for tuning in today.