OH&S

Industrial manslaughter law

What you need to know. By Stephen Pehm, OHS Consultant – Action OHS Consulting.

In Victoria, from July 1 this year, the consequences of a workplace fatality became far more serious for employers who are not providing a safe workplace. The Workplace Safety Legislation Amendment Bill 2019 – Workplace Manslaughter came into law.

This brought Victoria broadly in line with industrial manslaughter legislation in Queensland and the ACT, while similar laws are mooted to follow in WA and the Northern Territory. While there are no Industrial Manslaughter laws in New Zealand it should be noted that the New Zealand Government are outspoken about the merits of introducing such a law.

Find out below what you need to know about this legislation as an employer or leader, along with considerations for strengthening your workplace health and safety practices.

AN OVERVIEW OF THE LEGISLATION

This Workplace Safety Legislation Amendment Bill 2019 – Workplace Manslaughter lists the following objects (New Part 5A Section 39a): l prevent workplace deaths l deter persons who owe certain duties under Part 3 (general duties) l reflect the severity of conduct that places life at risk in the workplace.

The legislation aims to realise these objects by defining the offence of workplace manslaughter through negligence contributing to the death of another person (New Part 5A Section 39G).

The purpose of these new amendments is to hold the workplace parties with the power and resources to maintain and improve safety – namely employers and Corporate Officers – to account if a person (including a non-employee) is killed in their workplace as a result of unsafe work practices being carried out. Owners of storage facilities would be classified as Corporate Officers.

For a conviction to be recorded it would have to be proven that the death was directly due to the negligence of the employer or Corporate Officer in maintaining workplace safety.

Negligence is defined in section 39 (E) as “a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in.”

It would also have to be proven that the negligence occurred for a high-risk work activity which caused the harm. Note that these may include psychosocial and illness based risk related activities and may be applied retrospectively.

A BRIEF OVERVIEW OF THE PENALTIES

Maximum penalties are far more serious than those currently in place for conviction under the Workplace safety Acts. For example, if convicted in Victoria you may be imprisoned for up to 20 years and fined $16.5 million (100,000 ‘Penalty Units’), a five-fold increase in severity of maximum penalties. If charged with industrial manslaughter, a court would need to be satisfied of three factors before making a finding of guilt: l whether there was negligent conduct; l whether there was a breach of a safety duty; and l whether the conduct and breach led to the death of a person.

AVOIDING A PROSECUTION

The best way to avoid an industrial manslaughter prosecution is to provide a safe workplace for all users by ensuring your high risk work practices are safe. Typical high risk activities in storage facilities may include (but not be limited to): driving or towing, operating mobile plant such as forklifts or Elevated Work Platforms and managing pedestrian traffic, or working at heights greater than two metres.

Safety controls would broadly include: l Having Systems of work in place that specify how work tasks are to be carried out safely; l Training of all workers to work safely, report all safety related issues and participate in safe resolution of these issues; l Use of standard compliant equipment and personal protective equipment where applicable, all of which is maintained as per manufacturer’s instructions; l In addition, it would have to be demonstrably clear that all workplace parties were regularly discussing emerging and existing safety related risks and monitoring the effectiveness of controls.

WHAT DO I NEED TO DO AS A CORPORATE OFFICER?

The most effective way that you as a Corporate Officer can avoid a prosecution under this legislation is to ensure that a safe workplace is provided for all work activities carried out at your storage facility and that effective workplace safety based consultation is taking place. You should keep documented evidence of this being done so that you can easily demonstrate your Safety System.

While maintaining a paper based system or similar is OK, it can be considerably easier to manage your workplace safety obligations using safety management software. For example, Safety Champion will enable much easier storage and retrieval of information and allow easier monitoring that all of the workplace stakeholders are doing what they are required to.

On a personal basis you can best avoid a prosecution for industrial manslaughter by being actively aware of and engaged in the state of safety in your organisation.

If you cannot be confident that your organisation is actively working towards a safer workplace and no one in your organisation can show you evidence of this happening, then you are at risk of being prosecuted in the event of a workplace incident resulting in death or serious injury occurring at your workplace. Consider these questions: l Do I know what is happening across my work activities from a safety perspective or who is accountable for overall implementation of the system? l Am I aware of how many workers (and storers) have suffered harm in my workplace? l Do I know what my Workers

Compensation premium is and how many active WorkCover claims

I have? l Do I regularly attend consultation meetings, and do I monitor outcomes to ensure they are implemented?

Being aware of information such as this can act as the ‘canary in the coal mine’. If you choose not to get up to speed on what is happening in regard to workplace safety across your organisation, or to instigate steps to implement safety, then you increase your risk of being prosecuted for industrial manslaughter should someone be killed or seriously injured by the work you carry out. l

COMING SOON

StoreLocal Penrith September 2020

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