Workplace manslaughter offences: could your business defend itself?

From 1 July 2020, new legislation was introduced in Victoria which meant a criminal offence was introduced into occupational health and safety laws. If an employee was to die in the workplace and the employer was found to have committed an offence of negligent conduct by breaching certain duties under the Occupational Health and Safety Act 2004 (OHS Act) then directors and staff can face criminal charges. The ACT, Queensland, NT and NSW all also have some level of legislation regarding industrial manslaughter but the penalties and exact conditions in the legislation can differ.

This legislation sends a clear message that putting people’s lives at risk in the workplace won’t be tolerated. It also provided a stronger deterrent for duty holders to comply with their occupational health and safety obligations. Now more than ever before, employers must manage their workplace risks to avoid serious criminal charges and potential jail terms.

The changes don’t create additional requirements for workplaces to meet in terms of OH&S, instead, they introduce tougher penalties on existing duties under the OHS Act. If your business is already complying with your OHS duties, then nothing much should change but it is prudent to review the risks in your workplace to ensure you have adequate systems, controls and equipment in place to keep your staff safe. As well as creating a culture of safety within your organisation and ensuring you have the right insurance coverage to defend your business should the need arise. 

When is a workplace death considered manslaughter?

In order for a workplace death to be classed as industrial manslaughter negligence and causation need to be established. Conduct will be considered 'negligent' if it involves a lack of standard of care and there are circumstances that a reasonable person would consider there to be a high risk of death, serious injury or serious illness.

Causation refers to when the conduct of the organisation or person charged with the offence must have caused the death of the victim. It needs to be shown that acts or omissions of the organisation have contributed significantly to the death.

What are the penalties?

In Victoria, the seriousness of the offence is reflected in the penalties that now apply. If someone is convicted of workplace manslaughter they may face:

• a maximum of 25 years imprisonment for individuals; and
• a maximum fine of $16.5 million for body corporates (for example, registered companies)

Previously the penalties were much lower at 5 years imprisonment and $297,000 for an individual and up to $1.3 million for a company.

How you can reduce risk in your business?

Your systems and processes need to be effective and well thought out. Here are just a few things you need to consider:

• Review your OHS systems often and thoroughly
• Consider whether you implement this effectively and consistently across your entire business

• Education and awareness for directors, senior officers and managers on the new legislation and offences
• Conduct an incident and hazard report and implement corrective actions swiftly
• Ensure you have adequate insurance

Protecting your business with Statutory Cover

If faced with the unfortunate situation of a WorkCover monetary fine or penalty being imposed on your business or to individuals within your business you need to be able to have the means to defend yourself in court.

Statutory cover within a management liability insurance policy is a way to help protect your business from claims arising from the management of your company. It provides cover for a director’s personal liability, fines and penalties, employment practice claims and theft by employees or third parties. It helps provide the means to cover the costs of defending a claim, in particular, what is relevant here is an Occupational Health and Safety proceedings claim for a workplace manslaughter case.

This statutory liability insurance may provide cover for fine and penalties and defence costs. An important consideration as many businesses would struggle to financially recover from a serious incident occurring in their workplace.

When looking for statutory cover for your business, it is vital you read the fine print on your policy wording to know what is and isn’t covered. As different statutory policies offered by insurers can vary significantly in terms of their inclusions and exclusions. Our cgib brokers are experienced in this area and are happy to have a chat with you to discuss your needs. If you would like to discuss what insurance options are right for you please get in touch.

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