Workplace related offending, which risk the health and safety of employees has been a part of our law for a very long time. WorkSafe investigates and prosecutes employers in circumstances where their workplaces pose a risk to their workers, or attendees, and when there has been an actual injury caused to a person at a workplace. Common examples of workplace crime are injuries caused by outdated or faulty machinery, a failure to have proper procedures in place to ensure safety and a disregard by employers as to the safety of their employees (usually on work sites). In all of these circumstances, WorkSafe will prosecute the employer (usually a company) with powers to shut down work sites until they are cleared for safety. The penalties for such offences are always only financial.

However, in recent years, the Victorian government has introduced laws criminalizing workplace related offences, including workplace manslaughter and wage theft. The main difference between the previous law and the new law is that individual employees can be sentenced to terms of imprisonment for certain offences. Further, the legislation criminalises wage theft, thus converting it from a civil dispute into a criminal matter which will be prosecution by the state. This blog will provide an overview of each of these laws and also explain why you should engage a workplace crime lawyer if you are being investigated, or have been charged, with workplace offences.

Workplace Crime 1: Workplace Manslaughter

Whilst common law manslaughter has extended to instances of negligible workplace accidents for a long time, in July 2020, workplace manslaughter became criminalized in Victoria through the implementation of new provisions to the Occupational Health and Safety Act 2004. Under section 39G, negligent employers may be charged criminally and face fines of up to $16.5 million, whilst individuals face up to 25 years imprisonment if found guilty.  The offence of workplace manslaughter is investigated by WorkSafe Victoria, using their powers under the Occupational Health and Safety Act. The offence can apply to employers, self-employed people and ‘officers’ of the employer. These laws extend and apply to all duty holders under the OHS Act, at any workplace, except for individual employees. They apply at all workplaces. They also apply where an employer’s negligent conduct causes the death members of the public, visitors, and contractors whilst at the employer’s worksite. Essentially, employers may be liable for any death at their place of work.

Whilst the new provisions do not create additional duties on employers, they do create new offences regarding criminally negligent breaches of existing duties under the OHS Act. Essentially, this means that employers can be charged criminally if they are found in breach of their existing obligations under the OHS Act to provide a safe workplace, to both employees and persons in attendance of the workplace. As the employers are criminal accused, anything they say to investigators during the course of the investigation or whilst under surveillance can be used against them personally. They can face substantial terms of imprisonment as if they personally caused the death. If you are concerned that there has been a death at your workplace and that you may be accused of failing in your OHS duties, you must speak with a criminal defence lawyer familiar with workplace related crime as soon as possible.

 Legal Test for workplace manslaughter

Now, you may be wondering what constitutes criminal negligence in the workplace. Under the new provisions, the test for workplace criminal negligence varies for ‘applicable entities’ and ‘officers of an applicable entity’. The term ‘applicable entity’ is defined in the OHS Act as a ‘body corporate, an unincorporated body or associate, or a partnership’, whilst an ‘officer’ refers to a person employed by the entity.

For an applicable entity to be found guilty of workplace manslaughter, the prosecution must prove beyond a reasonable doubt, that; the duty holder (who is not an officer or an employee) owed a duty to the person; the duty holder breached that duty (either by act or omission); the duty holders 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. Finally, this conduct must have resulted in the death of the person to which the duty was owed (i.e., employee, member of the public, visitor or contractor).

Moreover, for an officer of an applicable entity (i.e., an employee) to be found guilty of workplace manslaughter, the prosecution must prove beyond a reasonable doubt that; the accused was an officer; they engaged in conduct (by act or omission) which constitutes a breach of the duty owed to a person by the entity of which they were an officer for and the 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. Finally, this conduct must have resulted in the death of the person to which the duty was owed.

Finally, to establish the offence of workplace manslaughter, the prosecution must establish that the applicable entity or the officer of the applicable entity was criminally negligent. This has a very high standard to prove, whereby a jury is 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.

In short, both businesses and their employees may be liable for the criminal charge of workplace manslaughter in circumstances of gross negligence, that resulted in the death of a person to which they owed a duty of care. This can include employees, contractors, and persons of the public. Whilst the new provisions do not place any further duties on duty holders, businesses and employees should be aware that they may now be criminally charged for workplace accidents that result in death.

As this is new and complex law, the courts are still figuring out how to deal with such new offences. In circumstances where you are an employer or a senior manager and a death has occurred in your workplace, you must take this situation extremely seriously. Not just on a professional but a person level. Engaging an experienced criminal defence lawyer to navigate your way through both the array of offences that you may be charged with, and also the defences that could be mounted to protect yourself, your business and your extended interests.

Workplace Crime 2: Wage Theft

In July 2021, the Victoria became the first jurisdiction to criminalize wage theft through the creation of the Wage Theft Act 2020. Wage theft refers to instances where employers deliberately underpay employees below their award rate or fail to pay their employees entirely. The Act covers a myriad of circumstances which may amount to wage theft. These include dishonestly withholding employee entitlements (i.e., pay or superannuation),; falsifying employee entitlement records in order to withhold employee entitlements and failure to keep employee entitlement records (i.e., payslips, superannuation entitlements). Additionally, a person who is complicit in the offence may be charged, however, this charge does not extend to persons who were acting under the direction of their employer and who are not officers of the employer. Businesses and employers found guilty of these offences face fines of up to almost $1 million for companies and up to 10 years’ jail or up to $200,000 for individuals.

In addition to the new laws, the Victorian Government established a monitoring and investigative body, the Wage Inspectorate Victoria, who are empowered by the Act to investigate allegations of wage theft and commence criminal proceedings against those found in violation of the Act.

Powers of the Wage Inspectorate Victoria

The Act empowers the Wage Inspectorate Victoria (WIV) to investigate and commence proceedings against employers suspected of wage theft related offences. When conducting their investigations, WIV inspectors must be wearing their identity cards and identify themselves to the employer. WIV inspectors have the power to search an employer’s workplace if the employer provides consent for them to do so. Consent would be provided following a notice from the WIV that they intended to investigate the employer’s workplace. It is important to note, however, that consent is not required for public workplaces. Additionally, if the employer does not give the WIV inspector consent to inspect and search the workplace, the WIV inspector does not necessarily need an authorised search warrant to conduct a search of the workplace.

As per section 40 of the Act, a WIV inspector may search the premise without consent and without a warrant if they have a reasonable belief that there are documents other things or persons at the premises that are relevant to the commission or possible commission of a wage theft offence. During the execution of the search, the WIV inspector is empowered by the act to seize document or other thing on the premises that the inspector believes on reasonable grounds to be connected with the commission or possible commission of a wage theft offence; make copies of, or take extracts from, any document or part of a document kept on the premises; make any still or moving image, audio recording or audiovisual recording of the premises. Furthermore, pursuant to section 48 of the Act, a WIV inspector has the power to request that the employer produce documents, and answer questions related to the suspected wage theft offence.

It is important to note that before requiring a person to produce a document or part of a document an inspector must warn the person that a refusal or failure to comply with the requirement, without reasonable excuse, is an offence; and must inform the person of the nature and effect of section 49 (which deals with the privilege against self-incrimination). Accordingly, section 49 of the Act stipulates that a person is not excused from producing a document as and when required by or under section 48 on the ground that the production of the document might incriminate the person. Therefore, documents must be produced to the WIV office at their request.

The WIV has extraordinary powers, that many businesses may find difficult to grasp. If you are contacted by the WIV, you must obtain legal advice to understand your obligations and also your rights with respect to the investigation and any prosecution of you.

To summarise, wage theft is now a criminal offence in Victoria. Employers who deliberately underpay or don’t pay their workers now face fines of up to almost $1 million for companies and up to 10 years’ jail or up to $200,000 for individuals. The Wage Inspectorate Victoria has wide ranging powers to investigate and prosecute wage theft offences, above and beyond what Police and WorkSafe have.

How the Workplace Crime Lawyers at Galbally Parker can Help

Being prosecuted for workplace related crime can have a devastating impact on your business, family and self. It will be scary and convoluted. Engaging an experienced workplace crime lawyer means that you are not alone. You need an advocate who will fight for you and your livelihood, whilst also assisting you to navigate the complicated nature of such prosecutions. The team of criminal defence lawyers at Galbally Parker has the experience, reputation and knowledge to both advocate for you personally as well as protect your business interests during the most difficult of circumstances. Contact us today to find out how we can help you.