Manslaughter under the criminal law has been available at common law to prosecute deaths arising from workplace accidents for some time, but this offence has only been used in the most extreme cases and it has traditionally been difficult to prove the offence against bodies corporate (as opposed to natural persons). The laws are wide reaching, in that:

• they apply to all existing duty holders under the OHS Act at any workplace except for individual employees;
• the laws apply at any and all workplaces, whether that be in a classroom, on a building sites or in an office; and
• the laws impose liability not just in respect of fatalities of employees, but of any person who dies at a workplace – including members of the public, visitors and contractors.

The new provisions do not impose new obligations on duty holders, but create new offences in respect of criminally negligent breaches of existing duties under the OHS Act. The first offence applies to 'applicable entities' under the OHS Act, which is defined to include a body corporate, an unincorporated body or associate, or a partnership.

For an applicable entity to be guilty of the first workplace manslaughter offence, it will be necessary for the prosecution to prove, beyond a reasonable doubt, that:

• the duty holder (who is not an officer or an employee) owed a duty to a person;
• the duty holder breached that duty (by act or omission);
• the duty holder's conduct was negligent, involving:
  • a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances; and
  • a high risk of death or serious injury or serious illness; and
• the conduct caused the death of the person to whom the duty was owed.

The second workplace manslaughter offence under section 39G applies to officers of an applicable entity. For an officer to be guilty of the offence, it will be necessary for the prosecution to prove, beyond a reasonable doubt, that:

• the accused was an officer;
• the officer engaged in conduct (whether by act or omission):
• the conduct constitutes a breach of the duty owed to a person by the entity of which they are an officer;
• the conduct is negligent, involving:
  • a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances; and
  • a high risk of death or serious injury or serious illness; and
• the conduct caused the death of the person to whom the entity owed a duty.

To prove an offence of workplace manslaughter, the prosecution must establish that either the applicable entity or an officer of an applicable entity was criminally negligent. This requires a jury to be satisfied that the conduct was such a gross departure from the standard of care that was owed in the circumstances and showed such disregard for the life and safety of others, that it amounts to a crime. This is a very high standard.

The Attorney-General, when announcing the changes, indicated that:

• deaths resulting from mental injury may be prosecuted under the new workplace manslaughter provisions;
• an duty holder may be prosecuted for causing a death where an organisation's unwritten rules or their policies or their work practices result in a culture of non-compliance; and
• a prosecution might lie where the actions of multiple individuals within the organisation amount to criminal negligence on the part of the corporation and cause a death.

The offences carry significant maximum penalties – up to $16.5 million in the case of an entity and up to 25 years' imprisonment in the case of a natural person.

While the workplace manslaughter offence is significant, for businesses that already comply with their obligations under the OHS Act, no additional steps will be required. However, it will be important for all employers, employees and company officers to receive training in relation to the workplace manslaughter provisions and their operation.

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Please get in touch with a member of our Workplace team if you would like more information on the changes or on anything we have discussed in this article.

You can also access our previous updates

Update on industrial manslaughter legislation, and

Victoria's industrial manslaughter laws and tougher penalties regarding dangerous goods about the background to the Bill.