Workplace Manslaughter (Vic)
In 2020, a new manslaughter offence was introduced into Victorian criminal law. This is the offence of workplace manslaughter, which occurs when a person dies as a result of a breach of duty of care in their workplace. This page outlines the offence of workplace manslaughter in Victoria.
Legislation
Workplace manslaughter is set out in section 39G of the Occupational Health and Safety Act 2004.
What is workplace manslaughter?
Workplace manslaughter occurs when a person dies at work as a result of a breach of a duty of care.
It is a criminal offence with a maximum penalty of imprisonment for 25 years for an individual. If a body corporate is found guilty of the offence the maximum penalty that applies is a fine of 100,000 penalty units.
Who can commit workplace manslaughter?
A company, partnership, unincorporated body or association, trustee or government entity can be charged with workplace manslaughter.
An individual can also be found guilty of workplace manslaughter if they are an officer of a body corporate, unincorporated body or association, or partnership who is not a volunteer.
A person is an officer if they are involved in decisions that affect the whole, or a substantial part of, the organisation. This includes company directors, company secretaries, partners, senior executives and persons on whose instructions the directors act.
When a court is assessing whether a party is an officer of an applicable entity, they will consider the extent of the persons influence and decision-making power, not simply their job title.
Workplace duty of care
The Occupational Health and Safety Act 2004 sets out the duties that apply to employers and officers in the workplace. These include the duty not to recklessly endanger a person in the workplace, the duty to provide and maintain a workplace that is safe and free from risk, the duty to monitor the health of workers and the conditions at the workplace, and the duty to take reasonable care to ensure the health and safety of persons who might be affected by one’s actions.
A breach of any of the duties of care under the WHS Act is a criminal offence. The offence of workplace manslaughter arises when any of these existing duties of care is breached, and a person dies as a result.
Negligence
For a person to be found guilty of workplace manslaughter, they must have been negligent, and their negligence must have caused the death of a person.
Section 39 of the Workplace Health and Safety Act 2004 defines negligence as ‘a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances.’
To amount to negligence under the Act, conduct must have involved a high risk of:
- death
- serious harm
- serious illness
Causation
For workplace manslaughter to be proved, the court must also be satisfied that the negligent act was the cause of the death. Under the common law,
A negligent act is the cause of a death if it:
- significantly contributed to the death; or
- was the substantial and operating cause of it.
Reasons for the new offence
The offence of workplace manslaughter was introduced into Victorian law so that Victorian employers could be held criminally liable when their negligent actions result in a death.
The creation of the new offence was designed to prevent deaths in the workplace, to deter people and organisations from breaching their duties under the WHS act, and to reflect the seriousness of the risk posed by negligent conduct in the workplace.
Jurisdiction
Like other homicide offences, workplace manslaughter is strictly indictable offence. This means it can only be heard in the Supreme Court or District Court.
If you require legal advice representation in any matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.