Fatal workplace incidents are, thankfully, rare in Victoria, due to regular WorkSafe inspections and the presence of unions on worksites. However, when they do occur, they are devastating for everyone involved.
There are also significant obligations on employers under occupational health and safety legislation to act quickly following a fatal workplace incident or an incident where a person is seriously injured.
1. Notify WorkSafe after a fatal workplace incident
The first thing an employer must do when notified of a serious workplace incident is call emergency services to attend. Their next phone call should be to WorkSafe.
Under section 38 of the Occupational Health and Safety Act 2004 (Vic), an employer must not, without reasonable excuse, fail to notify WorkSafe immediately after becoming aware that an incident has occurred at a workplace under the management and control of the employer.
WorkSafe provides further information about notifiable incidents under the Occupational Health and Safety Act 2004, including when an incident must be reported.
Generally speaking, where there has been a fatal workplace incident, WorkSafe will attend very quickly and liaise with Police and emergency services.
Within 48 hours of the incident, the employer is also required to provide WorkSafe with a written record of the incident, in the form approved by the Authority. A copy must then be kept for at least five years.
Failure to take these reporting steps is a criminal offence and can result in significant financial penalties.
If you are unsure about your obligations following a serious workplace incident, speaking with an experienced WorkSafe lawyer can help you understand how to respond.
2. Preserve the fatal workplace incident site
The second significant step is to shut down the site and preserve it in the same state it was in at the time of the incident.
Section 39 of the Occupational Health and Safety Act 2004 requires the incident site to be preserved until a WorkSafe inspector arrives or otherwise directs.
There are exceptions where disturbing the site is necessary for the purpose of:
- protecting the health and safety of a person
- aiding an injured person involved in the incident
- taking essential action to make the site safe
- preventing a further incident from occurring at the site.
For example, items or machinery may need to be moved so emergency services can access an injured person.
If the site is disturbed outside these exceptions, it is a serious offence punishable by significant fines.
WorkSafe’s guidance on notifiable workplace incidents and preserving an incident site provides further information about these obligations.
3. What happens during a WorkSafe investigation?
A WorkSafe investigation will begin immediately following notification of a fatal workplace incident.
WorkSafe will conduct a site inspection and prepare a report. Inspectors may also take photographs and obtain statements from witnesses. Depending on the nature of the site and incident, WorkSafe may obtain expert opinions from scientists, engineers or medical professionals.
WorkSafe inspectors have a wide range of powers.
They can enter a workplace at any time during business hours. However, if they reasonably believe there is an immediate risk to the health or safety of a person, they can enter at any time.
Inspectors can require a person in the workplace to produce documents. They can examine documents and require a person in the workplace to answer questions. It is an offence to refuse or fail to comply without a reasonable excuse.
They also have the power to take samples where necessary as part of an inspection or investigation. WorkSafe provides more information about the powers of WorkSafe inspectors and enforcement under the OHS Act.
Can WorkSafe obtain a search warrant?
Significantly, WorkSafe inspectors can also apply to a Magistrate for a search warrant to enter a particular place.
An inspector may seek a warrant where they believe on reasonable grounds that there is, or may be within the next 72 hours, a particular thing or document at the place that may provide evidence of the commission of an offence against the Act or regulations. This includes the offence of failing to provide a safe workplace.
Importantly, the search warrant can relate to a home, vehicle or any other place where the WorkSafe inspector believes on reasonable grounds that evidence may be located. It is not necessarily limited to the workplace or the site where the fatal incident occurred.
WorkSafe inspectors can also give directions to a person at a workplace if the inspector reasonably believes it is necessary because of a serious risk to the health or safety of any person arising from immediate or imminent exposure to a hazard.
This applies regardless of whether the hazard arises from, or is related to, the fatal workplace incident.
Galbally Parker’s workplace crime lawyers regularly represent businesses and individuals in WorkSafe matters and other workplace crime proceedings.
4. Workplace manslaughter and WorkSafe prosecutions
In 2019, the Victorian Parliament introduced provisions into the Occupational Health and Safety Act 2004 relating to workplace manslaughter.
The objectives of the changes were to:
- prevent workplace deaths
- deter people who owe duties to others in the workplace from breaching those duties
- reflect the severity of conduct that places lives at risk in the workplace.
A person may be charged with and found guilty of workplace manslaughter where they engage in conduct that:
- is negligent
- constitutes a breach of an applicable duty that the person owes to another person
- causes the death of that other person.
The offence is not limited to employers and can apply to people with relevant duties within a workplace.
The maximum penalty for an individual convicted of workplace manslaughter is 25 years’ imprisonment, which is the same maximum sentence as common law manslaughter.
An entity, such as a body corporate, unincorporated body, association or partnership, can also be prosecuted. Where the accused is not a natural person, the maximum penalty is financial.
Workplace manslaughter cannot be heard summarily and must proceed through the indictable stream.
You can read more about the offence on WorkSafe Victoria’s information about workplace manslaughter offences or learn more about how Galbally Parker’s workplace manslaughter lawyers can assist.
Speak to an experienced WorkSafe lawyer
While workplace fatalities are rare, as Victoria and other parts of the country experience growth in large construction projects and industries seek to remain onshore, serious workplace incidents can occur.
If you or your business experiences a death or serious injury on site, you should immediately contact an experienced OHS or WorkSafe lawyer for advice and guidance.
Our team of experienced lawyers regularly represents individuals and companies prosecuted by WorkSafe for a variety of offences.
If you are unsure about your position following a serious workplace incident or WorkSafe investigation, contact Galbally Parker to arrange an obligation-free, fixed-fee Initial Client Consultation.