New Workplace Manslaughter laws come into effect on 1 July

Whether you are running a farm or a coffee shop, keeping your workplace safe for your workers, customers or visitors must be your number one priority.  With Workplace Manslaughter laws coming into effect in Victoria on 1 July 2020 this has never been more important.

The Victorian Government recently added new provisions to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) allowing prosecution of businesses and in some cases, individuals, where someone dies at your workplace due to the owner’s negligence.

Who do the new laws apply to?

The new laws apply to an employer (whether they are a sole trader, a company, an unincorporated body or association or a partnership) who is responsible for ensuring the health and safety of another person in the workplace. Officers of an employer such as company directors, partners of a partnership or joint venture or trustees of a trust can also be held responsible if they fail to take reasonable steps to prevent a fatality. The laws do not apply to employees and volunteers.

What is Workplace Manslaughter?

Workplace Manslaughter occurs where:

  • an employer owes a duty of care to employees, contractors or members of the public;
  • the employer breaches this duty of care by criminal negligence where there is a high risk of death, serious injury or serious illness (negligence);
  • the action or inaction that breaches the duty of care is conscious and voluntary; and
  • the employer’s breach causes a person’s death (causation).

Workplace Manslaughter may apply even if the death occurs many years after the breach. For example, where an employee is exposed to dangerous chemicals due to an employer’s failure to provide clear instruction on handling or adequate personal protective equipment and years later the employee dies of an illness caused by the exposure.

When will there be negligence?

An employer is negligent if their action or inaction falls significantly short of the standard of care that a reasonable person would have exercised in the circumstances. It is a test that is based on existing common law principles.

An employer or its officers can be negligent by failing to act to prevent a workplace death by, for example:

  • not taking reasonable steps to fix a dangerous situation; and/or
  • not adequately managing, controlling or supervising employees.

What is causation?

An employer’s negligence will be found to have caused a person’s death where their action or inaction contributed significantly to the death or were a substantial and operative cause of it. The test is essentially whether an ordinary person would, as a matter of common sense, see the employer’s negligent act as causing the death.

How can I prepare?

All businesses need to review their OHS systems, instruction, training and supervision and inspect their premises to identify any risks and hazards. If you do not have any OHS policies or processes in place then put them in place. If you do have policies and processes in place, then review these to identify any unsafe work practices.  It is your responsibility to identify, assess and control hazards and risks.

Some practical things to do include:

  • Identify and assess potential hazards or risks (both physical and mental health risks). What could cause harm? How serious is the harm and how likely is it to happen?;
  • Develop OHS risk minimisation strategies to control the risk or hazard. How can you prevent or minimise the risk?;
  • Complete a review of all safety systems and control measures in place and ensure they remain effective over time;
  • Review all existing policies as well as any ‘unwritten practices’ relating to health and safety. Review how you manage and respond to incidents and injuries;
  • Review OHS leadership and assess your safety culture to ensure that any negligent conduct is not authorised, condoned or permitted by the company or culture; and
  • Educate your directors, senior officers and managers about the new legislation and the role they play in promoting a safety culture.

What are some practical things farmers can do?

Farms are dangerous places especially for small children or visitors who don’t understand the risks.  Farmers and farm managers must act to protect their workers, family members and visitors to prevent them being exposed to risks to health and safety.

According to the Safe Work Australia website, the best way to protect workers is to:

  • Eliminate hazards. If elimination is not possible then minimise the risks, so far as is reasonably practicable;
  • Choose the safest equipment for your needs and ensure it is well maintained;
  • Choose the safest chemicals and closely follow the manufacturer’s instructions;
  • Educate workers and visitors about the riskson the farm and how to manage these;
  • Give your workers the skills necessary to work safely; and
  • Closely supervise new or inexperienced workers (or farm visitors).

Farmers should also:

  • Take extra care when operating quad bikes and tractors by giving detailed instructions about their operation, especially on steep slopes and include roll cages and helmets as part of your risk mitigation strategy;
  • Instruct workers to take extra precautions when handling animals given their unpredictable nature. Ensure workers and visitors do not work with animals or ride horses alone; and
  • Assess your livestock pens and yards to minimise the risk of crush injuries or becoming trapped by ensuring there is an escape route.

Gun safety on your property should also be a high priority, especially if you have visitors shooting on your property from time to time, who may be unfamiliar with the layout of your property and the location of sheds and houses where people are likely to be.

What are the penalties if found guilty?

In addition to the emotional cost of having someone die on your property or at your workplace, if convicted of Workplace Manslaughter penalties may be imposed of:

  • Up to 20 years imprisonment for individuals;
  • A fine of up to $1.65 million for individuals; and
  • A fine of up to $16.5 million for businesses.

How can I get more information?

The Department of Justice and Community Safety has a helpful overview of the Workplace Manslaughter laws and Worksafe Victoria also has more information. For farmers Safe Work Australia has a dedicated section on safety in agriculture and can provide general advice on how to identify, assess and control hazards.

At Robertson Hyetts, we work with you to put in place processes and policies to identify, assess, control and review work health and safety risks to assist you in complying with your obligations under the OHS Act.

About the author

Katherine has worked within businesses as a Human Resources Manager as well as working as an employment lawyer, so therefore appreciates that business owners want practical advice without the legal jargon and at a reasonable price. Whatever the issue, Katherine has the experience to work with you to help you through it in a strategic way that minimises risk to your business. Katherine is also on the organising committee for the Bendigo Regional HR Network, which has recently become part of Be.Bendigo.

To make an appointment with Katherine Hietbrink, contact Robertson Hyetts in Bendigo on 03 5434 6666 or Castlemaine on 03 5472 1588.     

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