The skinny on workplace manslaughter in Victoria for councils
The introduction of the new legislation in Victoria represents a new era in workplace safety enforcement. All councils need to understand the new provisions and assess (or reassess) their critical safety risks to ensure that they are meeting their duties.
Councils who do not have appropriate incident response systems to address the aftermath of a serious workplace incident may be at greater risk of inadvertent admissions and should take the time to understand what they need to have in place.
Maddocks has extensive experience in drafting guidelines for councils, advising on safety compliance and assisting in the aftermath of a safety incident including in dealing with WorkSafe and responding to a prosecution.
The least you need to know
The new provisions apply from 1 July 2020 to create the statutory offence of workplace manslaughter, inserted into the Occupational Health and Safety Act 2004 (Vic) (OHS Act).
Employers, Officers (CEO’s Directors and Councillors) and employees can be guilty of the offence. Individuals can face up to 20 year's imprisonment while Body Corporates can be fined up to $16.5million (a tenfold increase on current penalties).
An employer or person commits the offence when it/they engage in conduct which is negligent and breach an existing duty owed under the OHS Act which causes the death of a person.
The existing duties include the duties owed to employees, employees of contractors and sub-contractors and persons other than employees (eg members of the public) who are exposed to risk as a result of the employer’s undertaking. The duties apply to both physical and mental risks and hazards. The breadth of council activities mean the scope of your duties is likely to be considerable.
Conduct (both positive acts and omissions) will be negligent if it involves both a great falling short of the standard of care that a reasonable person would take in the circumstances and a high risk of death, serious injury or illness. This includes consideration of what matters were engaged in by the body corporate and, according to the Explanatory Memorandum, an organisation’s ‘unwritten rules, policies, work practices or conduct’.
The legislation was introduced following an election promise, and at the time of the Bill’s introduction the Attorney General stated that "no person should die at work" and "All workers deserve a safe workplace and the proposed laws send a clear message to employers that putting people’s lives at risk in the workplace will not be tolerated."
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