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Workplace Manslaughter

Nov 27, 2019 | Parliament

Mr BARTON (Eastern Metropolitan) (16:07): I rise to speak on the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019. This has a lot of things that I was interested in doing some time ago. Over a month ago I attended the New South Wales taxi conference, and one of the topics I was interested in for Victoria, which I had intended to raise in this next coming year, was about the chain of responsibility. The New South Wales point-to-point regulator and the New South Wales Taxi Council have been working very strongly on a model for the chain of responsibility and have produced an industry-supported set of guidelines for safe working practices. We have no such model or recommendations here in Victoria. This bill may apply.

Many of you may be unaware that there are no regulations or standards about how long a commercial passenger driver should drive—that is, a taxi driver or an Uber driver. For example, in New South Wales a driver must have a 7-hour break in a 24-hour period. Drivers in New South Wales must not go beyond the prescribed driving time—between 10 and 12 hours, depending on their circumstances. They are also required to have breaks within that period of time. As an example, here in Victoria it would not be unusual for a booking service provider to tell a driver who has just done a 12-hour day shift that the booking service provider has no night shift driver and instruct his driver to do the 12-hour night shift, effectively getting him to drive 24 hours straight. That is ridiculous. Or a person who works a night shift as a baker finishing at 10 am may jump into a taxi at midday and take jobs well into the night. In New South Wales that baker would have to declare that he had taken a break of at least 7 hours before starting his driving shift.

In the world of Uber many drivers hold full-time jobs and go straight from a working day to logging in and driving for Uber.

Uber may or may not kick its drivers off the app after 10 hours, but it is common practice today for drivers to run multiple apps—they simply switch to Ola or DiDi or drive a taxi and work through the night. Because of the explosion in the number of drivers and cars on the roads, pay conditions are so poor and so below the living wage that many drivers feel this risky behaviour is the only way they are able to make a living. Uber have played many governments in Australia and around the world off a break, and they have worked very hard to distance themselves from drivers. They are not employers, they claim. So where does the responsibility lie when extremely fatigued drivers cause accidents with deaths? Should the regulator be held accountable, as it sets the standards for safety and best practice in the commercial passenger vehicle industry? This begs a new question: if Uber is not the employer of drivers, then who holds that chain of responsibility? This is a conversation I look forward to having with the government.

I would like to take some time to address some of the concerns raised about this bill. I too have spoken to a number of the peak bodies, and they all share an identical position. Of course employees should be included in a manslaughter offence, and they are. They are covered by the Crimes Act 1958. The new workplace manslaughter offence ensures that employers and the officers with the power and control over workplace safety are held accountable for their negligent conduct when it causes the death of a worker. The offence ensures that where a fatality occurs because those on the top of the chain of responsibility are negligent they can be held liable. This new offence addresses the gap in the common law that currently prevents corporations and those with the power to ensure health and safety from being held criminally liable. Employees, just like anyone else, can and should be held liable under criminal law for manslaughter as well as for conduct endangering life and conduct endangering persons.

The new offence focuses the minds of those in charge to take reasonable steps to impose the standard of care that would have been reasonable in the circumstances. For example, if a person in charge of a trucking company requires their workers to drive when they are so fatigued that there is a risk that they may have an accident on the road and knows that risk and fails to take steps to mitigate that risk, then they could be held accountable in the event of that worker dying at work. But we cannot remove the responsibility of an employee to show common sense. There would be few drivers that would not know the risk of driving when fatigued. They have a choice, and we have extensive employment laws to protect them from unlawful consequences of refusing to undertake dangerous work. The new offence does not alter the existing obligations of employers or officers. Simply, it imposes a penalty proportionate to the failing. A recent example: the owner of a scrap metal yard was charged when she drove a forklift with an unsecured scrap metal load on it and the load fell onto an employee, causing death.

I want to maintain the current protections against self-incrimination. WorkSafe Victoria should maintain the ability to secure documents in relation to a workplace fatality. The High Court ruled in 1984 and the Federal Court ruled in 2004 in Pyneboard Pty Ltd v. Trade Practices Commission that corporations do not have a right of self-incrimination in documents. It is very important that this reform can deliver successful prosecutions. The power to compel the production of documents pursuant to section 154 of the Occupational Health and Safety Act 2004 (OH&S act) is crucial to this. The power is necessary to enable inspectors to access evidence relevant to a workplace manslaughter case that may be difficult or even impossible to ascertain by alternative means.

Retaining the right to compel the production of documents is very important in ensuring the law can be successfully applied. If we were to try and prevent workplace inspectors in any investigation or inspection of a worksite from requiring duty holders to produce particular documents, we would see a significant watering down of the OH&S act. It would make it impossible to properly investigate or prosecute any contravention of the OH&S act, including offences of workplace manslaughter.

Section 154 of the OH&S act provides that an individual may refuse to give information if it would incriminate them. However, the privilege is qualified by section 154(2)(a), which states that the privilege does not apply to:

the production of a document or part of a document that the person is required by this Act or the regulations to produce …

The requirement to produce a document does not require a person to explain or comment on the document. This power is longstanding and allows for the proper functioning of the regulator. There is no privilege against self-incrimination for corporations in the OH&S act or more generally. The Evidence Act 2008 maintains this position, and this principle was confirmed in the High Court case of Pyneboard Pty Ltd v. Trade Practices Commission. Any opposition to this bill on this basis is a disingenuous attempt to undermine this reform by compromising effective investigation. It is a cut, albeit flawed, argument from corporations trying to limit their liability and responsibility flowing up the chain of responsibility.

It is not unique to the Occupational Health and Safety Act. Similar powers can be found in the Fisheries Act 1995, the Prevention of Cruelty to Animals Act 1986 and the Australian Securities and Investments Commission Act 2001. Under the current state of the law in Victoria, in the OH&S act the most serious health and safety breach is currently captured by section 32. It makes it an offence to recklessly engage in conduct that places or may place another person who is at a workplace in danger of serious injury. This requires the person to have acted with disregard of the danger and without lawful excuse. The maximum penalty for this offence is a fine of approximately $300 000 and/or five years imprisonment for an individual. For a body corporate the maximum penalty is a fine of approximately $3.3 million. Very few workplace deaths are prosecuted under section 32. Only three have occurred since 2005—one employee and two employers. Most workplace fatalities are prosecuted by reference to section 26 of the OH&S act, which refers to the failure to provide a safe working environment. On average a penalty of between $300 000 and $400 000 is imposed.

A recent example is that a construction worker fell from a ladder through a void and died. Proper void protection was not installed. The employer pled guilty without conviction and paid a fine of $275 000 under section 26 of the OH&S act. The new offence will significantly increase penalties and the term of imprisonment to adequately capture the seriousness of the negligent conduct and the loss of life and send a strong message of deterrence. The bill will hold accountable organisations and senior officers with the power and resources to increase safety at work. This is why the bill captures the conduct of ‘officers’ of organisations but not other more junior employees who are not ‘officers’.

The bill uses the definition of ‘officers’ in the OH&S act. An officer is a person who participates in the making of decisions that affect a substantial part of the organisation’s business and persons who have the capacity to significantly affect the organisation’s financial standing. This would include directors or secretaries of corporations, partners of partnerships and office holders of unincorporated associations. The proposed offences would not apply to employees who are not ‘officers’. Such employees are not in the position to effect real change or control over OHS practices or policies, so it would be inconsistent with the intent of these reforms for them to be prosecuted for workplace manslaughter. However, I note that such an employee could continue to be prosecuted under the current criminal law where their conduct has been criminally negligent and results in a workplace death.

Victoria is not on its own introducing workplace manslaughter legislation. Workplace manslaughter laws have been in place in the ACT since 2003 and in Queensland since 2017. Victoria’s laws are modelled on the Queensland laws. On 25 October 2019 Queensland commenced the first prosecution under its industrial manslaughter legislation against Brisbane Auto Recycling Pty Ltd. Separate charges have been made against the company directors for engaging in reckless conduct that resulted in the death of a worker. The matter is ongoing. Anecdotally the industrial manslaughter offence in Queensland has had a positive impact on changing the conversation around workplace safety culture in that jurisdiction.

In 2018 the Boland report commissioned by Safe Work Australia to review the model work health and safety laws recommended the introduction of a new offence of workplace manslaughter.

Finally, I want to talk about the concerns people have about family businesses and the inclusion of allowing individuals to be prosecuted in relation to the death of a relative. In relation to family farms, there may be circumstances in which the death caused is the death of a family member. If family businesses were excluded from liability for the offence, there could be a variety of unintended consequences. Firstly, businesses may restructure to avoid liability. Secondly, there may be situations where it would be appropriate to prosecute a family member for workplace manslaughter of another family member—for example, where the family relationship is not close enough to justify an exception. These scenarios are not unique to workplace manslaughter and arise in other areas of criminal law. Legal discretion has acted as an appropriate safeguard previously in circumstances where workplace fatality occurs in a family business, as it has in all criminal offences. A prosecution will only proceed if there is a reasonable prospect of a conviction and it is in the public interest. The key part is ‘in the public interest’. This is only after the known circumstances and facts are considered.

There are many examples of deaths that may have occurred in workplaces where a decision not to prosecute existing offences in the OH&S act has been made because of family relationships. This protection is working. There is a recent example which previous speakers have raised. In 2014 a 12-year-old boy, while helping his father bring in the cows, rolled his quad bike, which landed on top of him, causing fatal head injuries. He was not wearing a helmet. A recommendation was made not to prosecute the duty holder under the existing provisions of the OH&S act, and a prosecution was not initiated because the family relationship link meant there was no public interest. Another example, a very sad one: in January this year a two-year-old boy sustained crush injuries when a spreader full of fertilizer being detached from a tractor fell onto him on the family farm. A recommendation was made not to prosecute the duty holder under the existing provisions of the OH&S act, and a prosecution was not initiated because the family relationship link meant there was no public interest. These incidents are devastating for these families and nothing is gained by forcing prosecution, but that does not mean that the option to prosecute should be closed.

I am comfortable that good people with common sense will prevail. This is a controversial bill and there may be some overreach on both sides of the debate, but I believe the intention of this legislation is right, so therefore I commend this bill to the house.

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