DYS Issue 61 - June 2018
Workplace manslaughter laws coming to Victoria On the 26th May 2018, the Victorian Premier announced that if re-elected he will include a criminal offence of workplace manslaughter in the Victorian OHS Act 2004. Under the proposed new law an employer could be fined up to $12 million for negligently causing a workplace death and an individual could face a maximum of 20 years jail.
The Premier said “Families who have a lost a loved one at work deserve justice – that means jail, not just a slap on the wrist”. He would establish an Implementation Taskforce that included business and unions, to consult on the detail of the proposed laws. See the Premier’s media release for more detail HERE
Meanwhile in the ACT, Work Safe ACT is already using an industrial manslaughter law included in their Crimes Act, see item below.
Manslaughter Law and WHS Act used in Tandem over Workplace
Work Safe ACT launched a prosecution in April 2018 over the death of a construction worker in the ACT. The crane driver has been charged with manslaughter under the ACT Crimes Act. Also a range of duty holders are being prosecuted under the ACT WHS Act for the same fatality; two PCBUs, a Managing Director, a CEO, a Site Manager, a Supervisor, and two other Workers. The principal contractor, a subcontractor, a dogman, and the Site Supervisor and Safety Officer, have been charged with “reckless conduct” which is a category one offence under the WHS Act. The maximum penalty for the two PCBUs, if found guilty, can be $3 million each. The maximum penalty for the individuals, if found guilty, can be $300,000 and /or 5 years imprisonment.
Also the CEO of the principal contractor, the Managing Director of the subcontractor, and the Site Manager on that day, have been charged for failing to comply with health and safety standards – this is a category two offence under the WHS Act. The maximum penalties, if found guilty, can be $150,000 for each individual but $300,000 if an individual is an Officer of the PCBU.
WorkSafe ACT Commissioner Greg Jones said the evidence suggested there were significant and systemic failures on the site, with workers' safety not taken into account. “The risks were apparent and available to not only the people in a supervisory or management role, but particularly to those on-site.” “However, despite the risks, they continued in their task which resulted in the mobile crane exceeding its design capabilities to such a degree that it overturned with tragic consequences”.
Mr Jones said that the range of charges reflected the shared responsibilities under the Work Health and Safety Act, from the boardroom to the workers conducting the activity.
“All workers, employers, their directors and managers, both on site and in the office, must ensure that safety is the number one priority,” he said.
Note: Queensland added industrial manslaughter into their WHS Act in 2017. So the area of workplace manslaughter or industrial manslaughter is gaining ground in Australia as a legal response to a workplace fatality involving negligence.
NHVR: Changes to Chain of Responsibility laws confirmed for October 2018 Reforms that have been made to the Chain of Responsibility (CoR) laws will be implemented from 1 October. The NHVR has useful information and tools that you can access HERE. They include CoR Gap Assessment tools, role-specific fact sheets, Safety Management System templates and tools, and videos and podcasts. Duty holders who assess their risks and manage them will be complying with both the HVNL and workplace health and safety law.
This publication provides general information about WHS. It is not a legal opinion and does not represent a comprehensive statement of the law to be applied to a particular problem.
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