Understandably, many businesses are nervous about the implications of the workplace manslaughter legislation which comes into effect in Victoria on 1 July 2020. But, if you are actively identifying and monitoring hazards and implementing appropriate risk control measures – there really is no need to be concerned.
Under the amendments to the Victorian OHS Act, workplace manslaughter will become a criminal offence with maximum penalties of $16.5 million and 20 years jail in the event of a workplace fatality. While those convicted of workplace manslaughter face hefty fines and jail time, the legislation’s aim is to prevent workplace fatalities by further strengthening the accountability framework for organisations and their officers.
Recently, some of our clients have contacted us, anxious about the changes and what they mean for them – with many asking us to assist with reviewing their OHS risk management strategy and present to their Board in response to the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 being passed and the OHS Act being amended.
While this is wise and we always recommend regularly reviewing your OHS risk management strategy, the key thing to remember is that if you are actively identifying and monitoring the hazards associated with your business and implementing compliant and appropriate risk control measures – there really is no need to worry about industrial manslaughter.
That said, with the legislation coming into effect here in Victoria and the recent conviction in Queensland, we thought it was timely for us to share some of the particulars of the new legislation.
What’s changed?
The new industrial manslaughter laws have been added to the Occupational Health and Safety Act 2004 and will apply to organisations (including bodies corporate, partnerships, unincorporated bodies and unincorporated associations), self-employed persons as well as officers.
The new laws will attract the highest penalty in the OHS Act, introducing maximum fines of $16.5m for employers and up to $1.65m and jail terms of up to 20 years for officers whose actions or omissions:
cause the death of a worker or member of the public;
involve a breach of an OHS duty;
were criminally negligent.
Workplace manslaughter may apply even when the death of the person occurs sometime after the incident. For example, depending on the circumstances, if an employee develops a silica-related disease after exposure to silica dust without the use of adequate engineering and personal protective equipment controls.
How should my business respond?
The duties for duty holders under the Act have not changed. The legislation highlights a strong focus on organisations identifying and managing their risks. With this in mind; it is important for businesses to ensure that they have an adequate OHS systems, hazard control methodologies, training, instruction and supervision for their workers and contractors, and that they review, monitor and amend their processes in response to changes to legislation and the business’ operating environment.
To ensure you are continuing to comply with the legislation, consider the following:
ensure you are aware of all the hazards associated with the work and are confident that effective controls have been implemented to mitigate any potential risks;
ensure that there are adequate documented OHS processes and evidence of their implementation, including those for hazard identification, risk assessment, consultation with the workforce, incident reporting and management, etc;
ensure that you / officers of the organisation understand their duties under the Act and are clear as to how they are fulfilling them and fulfilling their duty of care.