How well prepared are Victorian employers for industrial manslaughter laws?

With the new Victorian workplace manslaughter penalties that commenced on 1 July this year, many question the level of preparation employers have in place for these amendments, according to Ian Wallis, a senior health, safety and wellbeing consultant at the Victorian Chamber of Commerce and Industry.

The response to this kind of question usually depends on four factors, he said:

• the organisation’s size (e.g. large, medium or small)
• the current risk profile of its operations
• leaderships awareness of, and commitment to the safety and wellbeing of all within their sphere of operations,
• then the level of resourcing an organisation currently applies to workplace safety.

“Usually (but not exclusively) as we review each of these organisational features, there is a distinct decline in organizational preparedness levels starting with the large, high risk, committed and well-resourced being well prepared down to the small, moderate to low risk, unaware of these obligations, and minimal resource application,” says Wallis, who was speaking ahead of an AIHS virtual event on workplace safety, which will be held on Thursday 3 September 2020.

He observed that organisational gap analyses usually reveal a lack of deep long-term planning and forethought applied to the chance of the one in 10 or 20 years, high or extreme fatality hazards, usually found in a business hazard and risk register.

“Most reviews reveal limited strategic planning applied to prevent these terrible events occurring, often with only two- or three-line items in the corporate risk register on serious injury and/or death, the accompanying brief generic control statements on having ’suitable policies, procedures and training’ in place,” said Wallis.

Most often the required organisational safety and environment performance standard of ‘so far as is reasonably practicable’ is rarely understood and not effectively applied in eliminating or treating high and extreme risks, he explained.

Most organisations either formally, or informally operate on a return on investment (ROI) principles that generally look no further than three to five years into the future, and Wallis said this can create an organisational “short-sightedness” when assessing and resourcing potential fatality hazards, risks and their controls.

“In fact, these new changes also incorporate longer-term illnesses like silicosis, asbestosis, and psychological injuries leading to death, along with the full removal of the current two-year statute of limitations that apply to bring a matter before the courts,” he said.

To date, Australia has only one modern legal precedent with a penalty of $3 million and two 10-month suspended corporate officer jail sentences in Queensland in June this year.

Wallis explained that the British corporate manslaughter laws, beginning in 2007, have formed a large part of the basis for designing these laws and provide many of the legal lessons for Australia.

“The British approach has not achieved the desired outcomes of much higher penalties and far less fatalities,” said Wallis.

“In 2016 new sentencing provisions were introduced to require the courts to increase the penalties being applied as the average penalty is still around 5 per cent of the possible maximum.”

Small business has received the large majority of the 26 British corporate manslaughter prosecutions in 13 years, with only one guilty verdict being handed to a large organisation (CAV Aerospace) with a complex corporate structure.

This is mainly due to the need for a strong causal link to exist between the originating negligent conduct and the resultant fatality.

“One notable difference with the British laws is that individuals are not included in their laws and so no jail options are available,” said Wallis.

“Although the new Victorian laws do not create any new ‘duties of care’, clearly the threat of up to $16.5 million and 25-year jail terms are getting a lot of attention from business leaders and owners.”

With employees being excluded from these new penalties, Wallis said OHS practitioners will need to have the capacity to clearly explain which ‘applicable’ duty holders need to be aware of and comply with these duties.

OHS professionals need to firstly understand these new laws and the ‘applicable duties’ and ‘duty holders’ they will apply to, then take the opportunity of this increased interest and help business leaders strengthen their fatality and serious injury/illness hazard and risk registers, along with having fully effective suites of controls in place.

“A widely consultative and very long term fatality risks review, including with employees, contractors and other partners, of these hazards, risks, and implemented controls is the first step to ensure the business strategy is the best it can be, and the chosen suite of controls withstands the minimum test of ‘reasonably practicable’ in each case,” said Wallis.

Finally, organisational leaders need to have very clear ‘lines of sight’ on the implementation and ongoing effectiveness of these fatality prevention strategies.

“This usually falls to OHS professionals to help develop these regular evaluations, monitoring and reporting methods including lead and lag performance indicators, near-miss/hit reporting, and internal/external auditing and assurance processes to provide this critical ‘line of sight’ on potential fatalities for business leaders and boards,” he said.

Wallis will be speaking as part of an AIHS virtual event on advanced technologies and innovations in workplace safety, which will be held on Thursday 3 September 2020 from 1-4pm. Other speakers as part of the event include Microsoft’s Lee Hickin (speaking on how AI is transforming the workplace) and Rodney Hampel (on using data and analytics to predict and prevent injuries to workforces of the future). For more information visit the AIHS virtual event series website.