New workplace manslaughter laws a timely reminder to reassess OH&S risks

By Alastair Phillips|30 March 2020
Alastair Phillips

The recent release of the Dreamworld coronial inquest findings is an important reminder to businesses about their duty of care to protect the health and safety of their employees, and the public, when undertaking business activities, writes Alastair Phillips.

The “systematic failure to ensure the safety of patrons and staff” which contributed to the death of four people on the Thunder River Rapids Ride in 2016 demonstrates the severe consequences that can occur when organisations lose sight of the safety of their employees and their customers.

While it might be easy to dismiss these findings, because most employers are not in the business of operating theme park rides, this case is a timely reminder for organisations to reassess their occupational health and safety risks.

For Victorian businesses, the introduction of the Workplace Safety Legislation Amendment (Industrial Manslaughter and Other Matters) Bill 2019 (Vic) that comes into force on 1 July 2020 will increase the severity of punishment for failing to ensure workplace safety and mitigate risks.

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What is workplace manslaughter?

The bill will introduce the concept of “industrial manslaughter” to the Victorian occupational health and safety laws.

Workplace manslaughter will apply where an organisation or officer breaches their duty of care in the workplace by committing either a conscious or voluntary act, including omissions.

Workplace manslaughter applies in circumstances where there was a high risk of death, serious injury or serious illness; and if these circumstances caused the death of an employee or member of the public.

Employers must eliminate or reduce risks to health and safety so far as is reasonably practicable. Under the new laws, this includes both the physical and mental safety of employees.

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The duty of care applies to organisations and self-employed persons, but also extends to officers such as directors and senior management.

What does it mean for businesses?

This extended form of criminal negligence is designed to address the “gap” in Victorian health and safety laws that meant employers could not be held criminally liable where their conduct caused or contributed to a workplace death.

It also serves to encourage employers to foster a culture of safety in the workplace and to ensure there are efficient and effective OH&S practices in place.

Victoria’s workplace manslaughter laws will impose the highest potential penalties in the country as compared to other Australian states and territories. The penalties include a maximum fine of $16.5 million for employers, or a maximum jail term of 20 years’ imprisonment and a $1.65 million fine for officers.

Looking beyond the penalties, organisations could also experience broader repercussions as the result of an unsafe working environment, including reputational damage. This could further impact the ability to provide services and jeopardise the organisation’s financial stability.

Employers should also be particularly conscious that they could be culpable due to a failure to act, and that they may be reasonably expected to know about the existence of hazards or risks within the workplace as outlined in section 20 of the Occupational Health and Safety (OHS) Act 2004 (Vic).

What can you do to prepare?

Employers should review the adequacy and effectiveness of their workplace safety practices by considering the following questions:

• When was the last time you reviewed the high-risk business activities in your organisation?
• Are there policies, procedures and practices in place to mitigate these risks and how are responsibilities communicated across the organisation?
• What is your organisation doing to ensure the mental health of its employees?
• What is your safety reporting culture? How confident are you that your employees would know how to report a safety incident, hazard or near miss?
• What is your organisation doing to continuously improve safety practices considering the organisation’s safety environment?

The most common causes of weaknesses in an organisation’s work place health and safety practices come down to their attitude towards health and safety culture, and whether they have appropriate accountability measures in place for the management of hazards and incidents.

Businesses must have a specific plan in place around how their organisation is working to continuously improve its safety practices. They must also be particularly conscious of creating a strong communications plan and channels around reporting and mitigating incidents or hazards.

Alastair Phillips is a senior manager in business audit, risk management and assurance at Pitcher Partners.

New workplace manslaughter laws a timely reminder to reassess OH&S risks
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