Today, we’re going to be touching on a more serious topic:
Yep! It’s not the prettiest of topics, but it’s something all business owners should be aware of when running a business. Especially in the industry of trades, hospitality, etc.
Given Parliament recently passed a bill relating to the Workplace Safety Legislation amendments on workplace manslaughter (26 Nov 2019), it has never been more important than ever to pay attention to the rules.
This new legislation is expected to come into effect by 1 July 2020 (at the latest) and contains tightened criteria for company directors and owners in the case of a workplace accident or dispute.
Trust us… you don’t want to find yourself caught in this sticky situation because you didn’t follow the rules…
So, what happens if you get charged with workplace manslaughter?
Well for a start, getting convicted of manslaughter will not result in you walking away with a slap on the wrist.
If you are convicted of workplace manslaughter, you can be hit with a 20 year imprisonment sentence (max) and a fine of $16.5 million (max) for body corporates.
This is why it’s critical to revise the current Work Safe guidelines and abide by all relevant policies/procedures to ensure that your:
- workplace is safe
- employees are safe, and most of all
- you are safe too.
When does Workplace Manslaughter apply?
According to the Worksafe.vic.gov.au website, workplace manslaughter applies when all of the elements of the offence are proven:
- the accused is a body corporate or a person who is not an employee or volunteer
- the accused owed the victim a duty of care pursuant to sections 21 to 24 or sections 26 to 31 of the OHS Act (this includes duties owed to employees, contractors and members of the public) (applicable duties)
- the accused breached that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or serious illness
- the act that breached the duty of care was committed consciously and voluntarily
- the accused’s breach of the duty causes the victim’s death.
They have also stated that a death of a person (even sometime after the relevant event) can be deemed workplace manslaughter, if it fits the relevant criteria.
For example, if one of your employees develops an asbestos-related disease and wasn’t provided with sufficient personal protective gear and equipment whilst working for you, you could be found liable (depending on the circumstances).
Can I be charged with Workplace Manslaughter even if I wasn’t at the incident?
You sure can.
According to Work Safe:
“a person, a body corporate, an unincorporated body or association or a partnership, including government entities and officers of these entities (but not employees or volunteers), who owes applicable duties to ensure the health and safety of another person in the workplace, can be charged with Workplace Manslaughter.”
This can include:
- the trustee of a trust
- company directors and secretaries
- Key decision makers that impact a substantial part of an organisation’s business.
- Partners of a partnership / joint venture
- People who affect the organisations financial standing significantly
It can really apply to anyone who owns a business or has a key role to play in the running of a business.
But… But… But…
What if it wasn’t my fault or I did my best to prevent it from happening?
Before you start stressing, there’s a couple of things we’d like to mention…
Despite how it sounds, not just anyone can be charged with workplace manslaughter.
In order to be convicted, the following 2 things must be proven:
- Negligent Conduct
- Causation (The your negligent conduct caused the death)
1) Negligent Conduct
In order to be whacked with workplace manslaughter penalties, there must be evidence of negligent conduct.
According to the Work Safe website, negligence is deemed as follows:
“Voluntary and deliberate conduct is ‘negligent’ if it involves a great falling short of the standard of care that a reasonable person would have exercised in the circumstances and involves a high risk of death, serious injury or serious illness”
This test is regularly applied in common law cases and takes into account common sense which is good.
Some examples of negligence could include:
- Failure to take reasonable action to fix a dangerous situation, where failing to do so causes a high risk of death, serious injury or serious illness.
- Not adequately managing, controlling or supervising employees
2) Causation: The conduct caused the death
In addition to negligence, it must also be proven that the death of the person was directly caused by the accused’s negligence or breached duty of care.
This is determined again by an existing common law test that considers whether an ordinary person would hold the accused’s actions or inaction liable as the direct cause of death.
As you can see, there are some pretty extensive criteria to be broken in order to be charged with workplace manslaughter BUT it is something that every business owner MUST be aware of.
If you’re not across your responsibilities or duty of care to your staff, it could happen.
We hope that this has helped to demystify the latest changes to the Workplace Safety Legislation and keep you in the loop.
That way you can continue to run your business operations confidently and as clean as a whistle.
If you have any questions about Work Safe Regulations or Workplace Manslaughter, you’re welcome to give us a call on (03) 9762 7344.