UDIA Victoria collaborated with other industry bodies and engaged with the Victorian Government, the Opposition and cross-benchers throughout the parliamentary process.
Last week the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 passed by the Victorian Parliament.
Under the new laws, workplace manslaughter is a criminal offence. Employers who negligently cause a workplace death will face fines of up to $16.5 million and individuals will face up to 20 years in jail. The offence will fall under the Occupational Health and Safety Act 2004 (OHS Act) and will apply to employers, self-employed people and ‘officers’ of the company or organisation. The new laws will also apply when an employer’s negligent conduct causes the death of a non-employee.
UDIA Victoria collaborated with other industry bodies and engaged with the Victorian Government, the Opposition and cross-benchers throughout the parliamentary process. While we believe that any workplace death is a tragedy that should never happen, we expressed significant concerns about the legislation. Specifically UDIA Victoria in a joint effort with other industry groups, voiced concerns about the exclusion of most employees, as it places disproportionate responsibility on a very narrow group of stakeholders while exempting all others from their responsibility to act in accordance with the OHS Act. Unfortunately, we find this law contradicts the aim of improving safety outcomes in the workplace.
Additionally, we sought amendments to maintain protections against self-incrimination, as the changes mean duty holders will have fewer rights than others charged with criminal offences.
The new offence also implies the organisation inherits and adopts, in full, the acts or omissions of its employees or agents, regardless of any compliance measures it has implemented to avoid those negligent acts or omissions. We expressed concerns that a company may be held liable for the actions of a rogue employee, particularly when that employee will not be able to be charged under the proposed offence. As such, we recommended to qualify the direct attribution of the criminally negligent conduct of employees to a body corporate.
Finally, we sought the exclusion of circumstances where an individual or family business could be prosecuted in relation to the death of a relative. This was based on the view that if a family member is killed working in a family-run business, that family will have suffered enough and it would not be appropriate or in the public interest to prosecute another family member for workplace manslaughter.
While there was parliamentary debate and a draft Amendment to the Bill which included these recommendations, the Bill passed without amendment.
The commencement date for the new manslaughter offence is yet to be confirmed.
UDIA Victoria strongly believes that all people deserve a safe work environment and we wholeheartedly support the aim of the new laws, which is to improve safety outcomes in the workplace. However, it is unfortunate that we do not consider the new legislation an appropriate or effective way to achieve its aim.