The pre-eminence of Australia’s farming sector and its importance as a source of national prosperity has long been recognised in expressions such as “Australia is living off the sheep’s back.”
Sadly, in Victoria, as a result of workplace accidents, there are 11 deaths per 100,000 workers in the agriculture industry, which is the highest fatality rate amongst workers in any industry.
Victorian Government statistics reveal that 63 people died working in the farming sector in Victoria between 2014 and 2018.
As a result new workplace manslaughter laws have been introduced as a new Part 5A into the existing OH&S legislation “to reflect the severity of conduct that places life at risk in the workplace.”*
Why are Workplace Manslaughter Laws Important?
Working on a farm can expose a worker to a number of risks of injury, from working with heavy machinery to working with large livestock. In fact, the two major causes of work-related deaths on farms are:
- The use of powered plant and machinery (in particular involving tractors, quad bikes, bailers and forklifts); and
- Working in close proximity to livestock (in particular from crush injuries when drafting and loading cattle). The new laws are designed to reinforce workplace safety, not by creating additional responsibilities, but by introducing tougher penalties for breaches of OH&S obligations already enshrined in the Occupational Health & Safety Act 2004. If convicted of workplace manslaughter, the relevant duty holder could face the following penalties:
- A maximum of 25 years imprisonment for individuals; and
- A maximum fine of $16.5 million for a body corporate.
Shine Lawyers’ Special Counsel Tom Bradley says: “I have represented a number of dependant family members who have lost a parent or a partner to workplace deaths as a result of faulty farm machinery in the viticulture industry and poor systems of work in the cattle industry. Everyone has a right to expect that they will return home safely from their day’s work. Families never fully recover from the loss of a family member in a workplace accident.”
How do the new Manslaughter Laws work?
The new laws come into effect from 1 July 2020, and do not act retrospectively. In other words, the penalties only apply to workplace deaths that occur on or after 1 July 2020.
The workplace manslaughter offence relates to breaches of specified existing duties under the OH&S legislation.
The elements of the new workplace manslaughter offence are:
- the person charged must be a body corporate or a person who is not an employee or volunteer
- they must have owed the victim a specified duty under the OHS Act
- they breached the duty owed by negligent conduct
- the breach of the duty caused the death of the victim, and
- if the person charged is a natural person they must have acted consciously and voluntarily when breaching the duty owed.
Organisations (such as a body corporate, or an incorporated association or a partnership) can be charged under the legislation.
Individuals (such as a director or secretary of an organisation, or a decision-maker of the business, a partner in a partnership or an office holder in an unincorporated association) can also be charged.
While WorkSafe Victoria (through the Fatalities Investigation Team) will continue to carry out the initial investigations into workplace manslaughter offences, Victoria Police also be involved in the process.
The Victorian Government is committed to preventing workplace deaths and sending a strong message of deterrence to the community about negligent conduct that places workers at risk of death or serious injury. Workplace manslaughter is an indictable offence. There is no statutory limitation period and the offence cannot be dealt with as a summary offence in the Magistrates’ Court.
Ongoing Importance of the Manslaughter Laws
Already this year, 41 Victorians have died in the workplace, according to WorkSafe’s new and expanded definition of a workplace death.
On 7 March 2020, a 68-year-old worker died when he was hit and run over by a reversing tractor-trailer combination on a farm.
On 9 March 2020, a 31-year-old horse riding stable worker was struck and killed by a car while riding near Geelong.
In later March 2020, a 23-year-old worker died after being crushed while working in a silo on his family’s dairy farm.
These tragic deaths are a reminder that working on a farm is a dangerous activity and that the obligation for organisations and individuals to take reasonable care are the same whether the farm is a small family business or run by a large multinational company.
WorkSafe have made additional dedicated Family Liaison Officers and Agent Family Support Specialists available to provide information and support to families and dependents following the death of a loved one.
Contact your state's WorkSafe service to find out about the laws in your state, or talk to Shine Lawyers for more information.
Source: *Section 39A of the Occupational Health and Safety Act 2004 WorkSafe.vic.gov.au Occupational Health and Safety Act 2004
Written by Shine Lawyers. Last modified: August 5, 2020.