Preparing for workplace manslaughter provisions in Victoria

In October 2019, the Victorian Labor Government submitted its Workplace Manslaughter (WM) legislation to state Parliament.  The bill has already passed the lower house and is currently before the upper house (Legislative Council); where it will need the support of cross-bench members.

If passed, Victoria will become the third state in Australia to enact WM legislation – after the ACT and QLD – which carries a maximum penalty of twenty years imprisonment.

The push for a national rollout is largely being driven by recommendations from the 2018 Boland review. But also, populist pressure – following a string of high-profile workplace deaths and a loud cry for governments to clamp down on negligent employers.

The laws are significantly less popular with the business community, particularly SMEs, many of whom are campaigning for the bill to be dropped. They claim the laws are “overly punitive” and will do little to enhance rates of workplace health and safety (WHS) compliance.

Regardless of SME sentiment, it’s looking likely the legislation will be passed, says Queensland workplace health and safety prosecutor, Aaron Guilfoyle.

“Fighting the tide is a fruitless exercise,” he said ahead of his speech at the Workplace Manslaughter conference. ”

My feeling is that governments will pass the legislation and are justified in doing so. Mostly because the proposed penalties are commensurate with other offences which involve the loss of life.”

Widespread controversy

However, not everyone shares Guilfoyle’s view that the laws are “justified”.

Fellow conference speaker, Robert Taylor of the Victorian Bar – a Barrister with 25 years experience in the prosecution and defence of WHS matters – believes the proposed bill is “poorly drafted” and “unnecessary”.

“I am concerned that the bill will diminish protections against self-incrimination available to individuals. In this regard, the bill potentially contravenes the charter of human rights and freedoms,” he argued, ahead of his speech.

“The case has not been made for an offence of workplace manslaughter. Nor has any evidence been provided that the offence of Manslaughter under the Victorian Crimes Act is inadequate – i.e. any failed prosecutions under the general criminal law. There has only been one attempt at prosecution of a defended matter in the Victorian courts (of which I am aware), now over twenty years ago.

“I strongly doubt that good safety outcomes will be achieved,” he continued. “This law divides employers and employees in a fundamental way.  It is discriminatory and will not assist in creating a ‘working together’ culture.”

Mr. Taylor also notes that the Boland report is silent on the exclusion of employees from these provisions.

“The report only addresses the application of this proposed offence to employers and ‘officers’,” he said.

“This contradicts the principle that underpinned the Robens reforms – that all people held safety duties – and that those duties were equal in application.  Also, that the focus was on risk, not on outcome.”

Fellow speaker and Senior EHS Consultant, John Darcy, agrees the laws are unjustified and will do little to deter negligent practice.

“The Government’s claim that the laws will make bosses take safety more seriously is baseless,” he said ahead of his speech.

“Businesses, particularly SMEs, are unlikely to change anything because they simply won’t know what to do differently.

“I believe that many employers will be shocked when they realise what this Bill provides for,” he continued.

“It provides for amendments that will increase the risk of prosecution for workplace fatalities, despite the Government claiming that they will be rarely used.”

However, Mr. Guilfoyle says that businesses who adequately guard against such loss of life need not worry about the penalties.

“They require gross negligence and that a life be lost – if you don’t cause a death and you’re not negligent, then you are safe,” he said.

“To date, there hasn’t been any controversy about the application or charging of industrial manslaughter in Queensland.

“In the eight months since my office was established, there has been one referral for an industrial manslaughter offence, and one industrial manslaughter prosecution arising from that referral.

“Yes, it might be early and there will no doubt be cases that present themselves in the future which are more borderline in terms of satisfying the elements; but that is not in and of itself controversial. That’s the case for any potential prosecution,” he argued.

SMEs to bear the brunt?

Taylor and Darcy echo concerns from the business community that SMEs may be a “soft target” for workplace manslaughter prosecutions.

“The impact this will have on small business will be disproportionate,” said Mr. Taylor.

“My fear is that the first couple of prosecutions will be aimed at small business in an attempt to secure a public conviction.  I am also concerned that regulators will feel some compulsion to justify the existence of these offences.”

Mr. Darcy also noted that the “vast majority” of WorkSafe’s prosecutions are against small businesses. “WorkSafe Victoria does not target large corporations,” he said.

However, Mr. Guilfoyle said these arguments ignore the reality that workplace fatalities are almost, without exception, the subject of a comprehensive investigation.

“Whether a prosecution, including for industrial manslaughter, is ultimately commenced thereafter, is determined by the facts alleged and the strength of the evidence; rather than any predetermined notion of who should be targeted,” he said.

“There may in the end be a greater impact on small and medium business, but it is unlikely to be because they have been targeted by the regulator.”

Changing the focus

With the passing of the legislation looking likely, Mr. Darcy offers some advice to businesses.

“Focus heavily on worker engagement and ensure that there is a strong safety culture. Engage safety professionals to provide ‘compliance audits’ – i.e. not ISO standards audits – against the legislative requirements. The Government have highlighted that the laws will focus on an organisations ‘culture of compliance’,” he said.

Meanwhile Mr. Taylor said a complete review of all safety systems and plant by a qualified and experienced safety professional should be the first step.

Mr. Guilfoyle concluded, “The time now is really to start guarding against fatalities and avoid being caught by IM offence, rather than debating its utility.”

Hear more from Aaron Guilgoyle, Robert Taylor and John Darcy at Informa’s Workplace Manslaughter Conference due to take place 4 December 2019 in Melbourne.

Learn more and register.