The recent release of the Dreamworld coronial inquest findings is an important reminder to businesses about their duty of care to protect the health and safety of their employees and members of the public when undertaking business activities. The “systematic failure to ensure the safety of patrons and staff” which contributed to the death of four people on the Thunder River Rapids Ride in 2016 demonstrates the implications when organisations lose sight of the safety of their employees and their customers. While it might be easy to dismiss these findings because most organisations are not in the business of operating theme park rides, the introduction of the Workplace Safety Legislation Amendment (Industrial Manslaughter and Other Matters) Bill 2019 (Vic) that comes into force on 1 July 2020 is a timely reminder for organisations to reassess their occupational health and safety risks.
What is Workplace Manslaughter?
The new Bill will introduce the concept of industrial manslaughter to the Victorian occupational health and safety laws. Workplace manslaughter will apply where:
- an organisation or officer breaches their duty of care (in the workplace);
- by committing a conscious or voluntary act (including omissions);
- in circumstances where there was a high risk of death, serious injury or serious illness; and
- caused the victim’s death.
Employers must eliminate or reduce risks to health and safety so far as is reasonably practicable and the duty of care applies to organisations, self-employed persons and also extends to officers (i.e. directors and senior management). Under the new laws, this includes both the physical and mental safety of employees.
What does it mean for our clients?
This extended form of criminal negligence is designed to address the ‘gap’ in Victorian health and safety laws that meant employers could not be held criminally liable where their conduct caused or contributed to a workplace death. It also serves to encourage employers to foster a culture of safety in the workplace and to ensure there are efficient and effective OH&S practices in place.
Victoria’s workplace manslaughter laws will impose the highest potential penalties compared to other Australian states and territories. The penalties include a maximum fine of $16.5 million for employers, or a maximum jail term of 20 years imprisonment and a $1.65 million fine for officers.
Looking beyond the penalties, organisations could also experience broader repercussions as the result of an unsafe working environment, including reputational damage which could impact the ability to provide services and jeopardise the organisation’s financial stability.
Employers should also be particularly conscious that they could be culpable due to a failure to act and that they may be reasonably expected to know about the existence of hazards or risks within the workplace as outlined in Section 20 of the Occupational Health and Safety (OHS) Act 2004 (Vic).
What can you do to prepare?
Employers should review the adequacy and effectiveness of their workplace safety practices by considering the following questions:
- When was the last time you reviewed the high-risk business activities in your organisation?
- Are there policies, procedures and practices in place to mitigate these risks and how are responsibilities communicated across the organisation?
- What is your organisation doing to ensure the mental health of its employees?
- What is your safety reporting culture? How confident are you that your employees would know how to report a safety incident, hazard or near miss?
- What is your organisation doing to continuously improve safety practices in light of the organisation’s safety environment?
Some of the most common weaknesses in relation to an organisation’s workplace health and safety practices and therefore areas to be particularly conscious of include:
- The organisation’s attitude towards its health and safety culture;
- Accountability for the oversight and management of incidents or hazards and remedial actions;
- The communications plan and channels around reporting and mitigating incidents or hazards; and
- How the organisation will act to continuously improve its safety practices.
To discuss your duty of care as a business, how to be proactive in protecting your people and mitigate risk, contact your Pitcher Partners specialist.
Disclaimer: this information is intended only as a general summary and overview on the matters raised above. It does not constitute legal advice and as such should not be relied upon. Seek further legal or professional advice before acting on any of the above information.
 Similar provisions to the Workplace Safety Legislation Amendment (Industrial Manslaughter and Other Matters) Bill 2019 are in force in Queensland, ACT and the Northern Territory, and proposed for New South Wales and Western Australia.