The Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 (Vic Bill) was passed by the Victorian Parliament on 26 November 2019 and will come into effect in just under a month on 1 July 2020.
The new legislation is aligned to the manslaughter provisions in the Crimes Act WorkSafe have stated it will not be applied retrospectively for injuries / incidents that occur prior to 1 July 2020.
These laws are intended to focus on the people within a business who have an ability to control the policy and funds to control risks and there is no distinction in the application of the new laws for large or small employers.
Who does the legislation apply to?
The offence of workplace manslaughter can be applied to a person (and their officers) who hold duties under Part 3 of the OHS Act. Those who fall under this category are:
- Directors and secretaries of companies
- Partners of a partnership or joint venture
- The trustee of a trust
- Persons who participate in the making of decisions that affect a substantial part of the organisation’s business
- Persons who have the capacity to affect significantly the organisation’s financial standing
The new legislation essentially Impacts on anybody (an “officer” term borrowed from the Corporations Act and typically someone senior in a business ) who owes a duty of care under the Occupational Health and Safety Act 2004 (Vic) – anyone charged with responsibility to maintain a safe workplace, self-employed persons and manufacturers of equipment.
Employees and volunteers cannot be charged (except for employees such as Directors and or Officers who have management control to effect change).
Penalties – Old vs New:
5 years imprisonment Up to 20 years imprisonment for individuals
$297,000 – individual $1.65M
Company $1.3Mil $16.5M
Key Message for Employers
Ensuring that risks to your workers are mitigated or minimised is always your responsibility. Workplace Manslaughter provisions do not replace other laws / offences already prescribed but acts as a significant penalty uplift. Duties and obligations under the OHS Act 2004 remain unchanged however the new offence will essentially “bolt on” additional consequences of breaching OHS duties and non-compliance.
- Have a safe system of work in place and ensure that your systems and processes are effective
- Review your OHS systems often and thoroughly taking into account both physical and mental health – there is no room for a “set and forget” approach to safety
- Consider whether you implement your OHSM effectively and consistently across your business
- Education and awareness for directors, senior officers and managers on the new legislation and offences;
- Conduct a RCA of incident/ hazard / near miss reports and implement corrective actions in a timely manner
- Consider your insurance arrangements for your organisation and officers
The death of one of your employers is a tragedy for their family, friends and colleagues and the new legislation is now aligned to community and regulatory expectations that every Victorian worker has the right to be safe at work and go home safely to their loved ones at the end of their work day.
Now more than ever employers must manage their workplace risks to avoid the increasing consequences. Please contact your Adroit Insurance Risk Adviser or ReWork direct on 1300 471 234 to discuss how we can assist.
Article written by Rozanne Brash, Senior Account Manager – ReWork