Workplace Manslaughter (Victoria)
As of 1 July 2020, Victoria’s Parliament passed an amendment to Victoria’s Occupational Health and Safety Act (OHS Act) to include workplace manslaughter provisions. Workplace liability is expanded to include company officers (secretaries, directors etc.), corporations, body corporates, and more.
This article attempts to inform the reader of the elements of the offence, the consequences involved with this type of offending and to provide a brief understand of the relevant rules and considerations used to determine when a person (both natural and/or unnatural for purposes under the Corporations Act) may be held liable.
The Elements of Workplace Manslaughter (Vic)
The first test to prove workplace manslaughter is one of negligence. Thanks to the famous ‘snail in a bottle case’ negligence at common law, is the legal principle of failing to take proper care where a duty of care is owed to another party. This means that negligence can arise from either negligent conduct (i.e. performing or doing something but that conduct is below that reasonably expected in the circumstances) or a negligent omission (i.e. a failure to do an act or behaviour).
The second test to prove workplace manslaughter is to show that the negligence resulted in a breach of a duty owed to another person. The degree and liability may change depending on the parties and persons involved. Nevertheless, the applicable duties for workplaces are set out in Part 3 of the OHS Act.
The third and final test will be to ask the question did the negligence and breach of a relevant duty cause the death of the other person? This question may not be easily answered. And so, full consideration will be given to the circumstances of the case. This includes determining the degree of liability and consideration of the relevant duties.
Duties & Obligations & Considerations
The provisions relating to workplace manslaughter set out in Part 5A of the OHS Act do not preclude, diminish or shift to any degree, the duties and responsibilities imposed on employees, employers, companies and officers under employment and common law. This means that all relevant parties must continue to satisfy their obligations and applicable duties. Likewise, where workplace manslaughter is proved) so too is a breach of the applicable duties.
Consideration will be given to the degree (seriousness) of harm that arose or was likely to arise from the conduct or failure to act, the likelihood of the harm occurring, any mitigation factors involved (i.e. degree of control over the causation of death (or lack thereof)), relevant company safety procedures, policies and measures in place.
Workplace manslaughter is a criminal indictable offence. This means that if proved, the offence carries serious consequences. If you are a natural person (i.e. you are not a company, corporation, partnership, trust or body corporate) it carries a 25-year term of imprisonment and for companies it carries a $16.5million dollar fine.
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