Workplace Manslaughter Offences

Recent media coverage of WorkSafe’s decision to pursue private school Haileybury over the death of a school groundsman in 2018 serves as a timely reminder of the importance for all school authorities and principals to be aware of the new workplace manslaughter offences introduced by the Victorian Government towards the end of 2019.

Worksafe is responsible for prosecuting breaches of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and pursued Haileybury in relation to the death of its groundskeeper on school premises. Groundskeeper Kym Page died at the rear of Haileybury’s Berwick campus on 14 February 2018 while pruning trees. The matter is ongoing, with a two-day committal hearing  originally scheduled for August at the Melbourne Magistrates Court.

A Safe Workplace and Duty of Care

All schools have a legal and moral responsibility to provide a safe workplace, including minimising or eliminating risks to mental and physical health. Liability for injury to staff members can arise because of:

  1. Common Law Duty of Care – School authorities, as employers, are subject to a duty of care to ensure that their employees are not exposed to unnecessary risk to their physical and/or psychological health.
  2. Statute Law Duty of Care – Under the OHS Act, an employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

An employer contravenes their duty of care if they fail to do any of the following:

  • Provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
  • Make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
  • Maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;
  • Provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
  • Provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
Failing to do this can result in a maximum penalty of 1800 penalty units ($297,396.00) for a natural person and 9000 penalty units ($1,486,980.00) for a body corporate.

Other duties of an employer under the OHS Act include:

  • An employer also has a duty to monitor the health of its employees and the conditions at the workplace, as well as provide information to employees concerning work health and safety, including the names of people to whom an employee may make a health or safety complaint or inquiry.
  • An employer must, so far as is reasonably practicable, keep information and records relating to their employees’ health and safety and employ or engage people who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of the employer’s employees.
Workplace Manslaughter

The Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 passed Victoria Parliament on 26 November 2019 and is expected to come into effect no later than 1 July 2020.

The new laws make workplace manslaughter a criminal offence. They are designed to help prevent workplace deaths by creating a strong deterrence for organisations and individual officers against breaching their occupational health and safety duties.

What are the elements of workplace manslaughter?

The elements of the workplace manslaughter offence include:

  1. The accused is a body corporate or a person who is not an employee or volunteer;
  2. The accused owed the victim a duty of care pursuant to the OHS Act;
  3. The accused breached that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or serious illness;
  4. The act that breached the duty of care was committed consciously and voluntarily; and
  5. The accused’s breach of the duty caused the victim’s death.

Who can be charged with workplace manslaughter?

The following entities can be charged with workplace manslaughter:

An employer (including body corporate, unincorporated body, association or partnership) or a self-employed person or officer (person) who, by their negligent conduct, causes the death of anyone who is owed an existing duty under the OHS Act.  The workplace manslaughter laws do not apply to employees or volunteers, who continue to be subjected to the criminal law.

An employer may be held criminally liable where their conduct amounts to criminal negligence. The employer will be directly liable where their unwritten rules, policies, work practices or conduct fail to create a culture of compliance with its responsibilities and duties under the OHS Act. The employer will also be indirectly liable through the actions or omissions of their employees, agents or contractors acting within the actual or apparent scope of their employment.

Importantly for school principals, an ‘officer’ includes those individuals at the highest level of the organisation (e.g. directors of bodies corporate or partners of partnerships) but also captures people who participate in making decisions that affect a substantial part of the organisation’s business or who have the capacity to affect significantly the organisation’s financial standing. The new law will provide that an individual officer is guilty of workplace manslaughter where their negligent conduct constitutes a breach of the organisation’s duties under the OHS Act and causes death.

What is criminal negligence?

Voluntary and deliberate conduct will be negligent if it involves a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances and involves a high risk of death, serious injury or serious illness. Examples of negligent conduct may include when a person:

  • Does not adequately manage, control or supervise its employees;
  • Does not take reasonable action to fix a dangerous situation, in circumstances where failing to do so causes a high risk of death, serious injury or serious illness.

What are the penalties?

An employer who negligently causes a workplace death will face a maximum fine of $16.5 million (for body corporates) or a maximum of 20 years imprisonment (for individuals).

Who enforces the new law?

As is currently the situation, WorkSafe Victoria will continue to be responsible for investigating and prosecuting proposed breaches of the OHS Act.

What does this mean for schools?

A school with robust practices and procedures which comply with the OHS Act would be highly unlikely to be found guilty of the workplace manslaughter offences. In light of this, it is imperative that your school:

  • has an Occupational Health and Safety policy and procedures in place;
  • provides a copy of the Occupational Health and Safety policy and procedure to all staff members;
  • regularly reviews and updates the Occupational Health and Safety policy and procedures;
  • regularly trains staff members on the Occupational Health and Safety policy and procedures;
  • regularly consults with staff members about occupational risks and hazards;
  • has a system in place for reporting incidents and hazards;
  • regularly performs workplace inspections to identify risks to health and safety;
  • continually reviews identified risks and hazards around the workplace; and
  • works with all staff members in a proactive way to ensure that risks and hazards are identified and eliminated and/or minimised so far as is reasonably practicable.

It remains to be seen whether Haileybury had sufficient Occupational Health and Safety policies and procedures and other relevant risk management practices and procedures in place to discharge its duty of care under the OHS Act. Whilst the new workplace manslaughter laws will not apply to this incident, it provides an example of the type of situations where the new laws might apply in the future.

This case also highlights the importance for a school to have a working alone and in isolation policy (this applies for staff who work independently – not a COVID-19 reference) in order to minimise instances of and risks associated with working alone or in isolation. This would be required at most schools as groundskeepers often work during and outside school hours in an isolated location within the school.

How can Brennan Law Partners assist?

Schools cannot ignore workplace health and safety. Serious penalties attach to breaches of the OHS Act and there can be significant public relations fallout for schools when staff, contractor or students are injured or killed at school.

Please contact us if you would like to further discuss the operation of the new workplace manslaughter offences. We can also review your school’s current workplace health and safety policies and risk management procedures to ensure that they continue to meet your particular needs and provide adequate protection to your school with regards to the discharge of your legal duty to provide a safe workplace to your employees.

If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.

This is meant as a guide only and should not be taken as legal advice.

Question? Comment? We’re here to help so talk to us!