Are your OHS procedures up to scratch?
What is negligence in so far as the new manslaughter offences are concerned?
The new manslaughter provisions inserted into the OHS Act define conduct as being 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 in which the conduct was engaged in; and
a high risk of—
(i) death; or
(ii) serious injury; or
(iii) serious illness.
It is also worthwhile noting that factors relevant in determining whether an individual officer was negligent for the purposes of the offence includes but is not limited to:
- what the officer knew about the matter concerned;
- the extent of the officer’s ability to make, or participate in the making of, decisions that affect the body corporate in relation to the matter concerned;
- whether the contravention by the body corporate is also attributable to an act or omission of any other person; and
- any other relevant matter.
The standard that is to be applied is the standard of reasonableness.
The maximum penalties are intended to deter employers and officers from breaching their occupational health and safety duties, and encourage them to allocate appropriate resources and training to improve workplace safety.
For Victoria, the maximum penalties specified by the new amendments to the OHS Act include:
- up to 20 years imprisonment for individuals such as company directors (this is a same maximum penalty that is applied to the criminal offence of manslaughter); or
- a maximum fine payable by a Company of up to 100,000 penalty units (which is currently around $16 million dollars).
In light of the above it is critical that employers and persons who owe the duties caught by the new manslaughter provisions ensure that they have appropriate OHS procedures and practices in place and that their employees are sufficiently trained in such practices of work.
The new offences are indictable offences that cannot be determined summarily (that is, they cannot be dealt with entirely in the Magistrates’ Court).
Other sanctions under the OHS Act for breaches also continue to apply.
Please get in touch with a member of our team if you would like more information on anything we have discussed in this article.