Workplace crime is a new area of criminal aw brought in as a result of legislative changes in Victoria. Importantly, the crimes of wage theft and workplace manslaughter now carry criminal penalties, which include substantial fines as well as imprisonment. It really is a game changer. It imposes obligations and duties on all areas of industry and upon all of the individuals who owe duties to others in the workplace. It will have particular relevance and prevalence in the building and manufacturing industries, where there might be tens or hundreds of people working for a business or on a site, all of whom are owed duties.
Workplace Manslaughter (known as industrial manslaughter in some jurisdictions) is a species of homicide that shares similarities to common law manslaughter, but is a distinct offence and has unique elements that the prosecution must prove. The offence itself can be found in section 39G(1) and (2) of the Occupational Health and Safety Act. In order to be found guilty of workplace manslaughter, the prosecution must prove beyond a reasonable doubt that:Workplace Manslaughter (known as industrial manslaughter in some jurisdictions) is a species of homicide that shares similarities to common law manslaughter, but is a distinct offence and has unique elements that the prosecution must prove. The offence itself can be found in section 39G(1) and (2) of the Occupational Health and Safety Act. In order to be found guilty of workplace manslaughter, the prosecution must prove beyond a reasonable doubt that:
- The accused person is not a volunteer;
- That person has engaged in conduct that is negligent;
- That the negligent conduct constitutes a breach of an applicable duty that the person owes to another person; and
- That the negligent conduct caused the death of that other person.
Section 39G(2) also contains the same test but is applicable to officers of an ‘applicable entity.’ The drafters of the legislation have included definitions for a number of terms used. These include:
Conduct includes an act, but also an omission.
Breach of applicable duty
Conduct may amount to a breach of a duty even though any other conduct also contributed to the breach and whether or not proceedings have been instituted in relation to the other breach.
A person’s conduct is negligent if it involves a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in AND it involves a high risk of death, serious injury or serious illness.
This is a slightly different test to the test for negligence in common law manslaughter. Common law manslaughter requires that an accused’s act or omission must have fallen so far below the standard of care a reasonable person would have exercised, and to have involved such a high risk of death or really serious injury, that the act or omission merits criminal punishment. It is noted that the phrase ‘merits criminal punishment’ and the ‘really’ in serious injury has been omitted and that the phrase ‘serious illness’ has been added. Furthermore, the wording has been altered from ‘so far below’ to ‘great falling short.’
There may be many arguable ways to demonstrate that particular conduct does not amount to ‘negligent’ conduct as per the act. For example, an accused person might have engaged in conduct that was a ‘great falling short of the standard of care,’ however, it may be arguable that the risk of death or serious injury thus created was only small, or moderate. Anything less than a ‘high’ risk would require the accused person to be acquitted. There are separate provisions addressing negligent conduct on behalf of bodies corporate.
Duties owed to another person
A person may owe another person an ‘applicable duty’ if the act imposes a duty on a person and it is either explicit, or implicit, that the duty is owed to another person
For example, the OHSA prescribes a number of duties on particular people. These include duties of employers to employees and other persons, duties of self-employed persons, duties of designers and manufacturers. A duty may be explicitly owed if the person owed the person to whom the duty is owed falls into a ‘class’ of persons specified in the legislation and the duty relates directly to the health and safety of that person. However, it may also be implicitly owed if the purpose of the provision is to ensure the health and safety of persons of a particular class.
If found guilty of workplace manslaughter, penalties can be severe. This includes a maximum of 20 years imprisonment for individuals and up to 100,000 penalty units for bodies corporate. Prosecutions for workplace manslaughter should be taken extremely seriously. Furthermore, if you are a Director of a Company or looking at becoming one, your ability to hold a Directorship or become an Office Holder in a company in the future might be severely (and perhaps permanently) affected. Accordingly, the penalties can be actual, reputational, financial and ongoing.
There is no statute of limitations applicable to workplace manslaughter. A prosecution can be brought at any time (but not for conduct alleged to have occurred prior to when the legislation was introduced). Workplace manslaughter has also been added to the few criminal offences where a prosecution can be reopened after an acquittal on application by a prosecutor to the Court of Appeal. Workplace manslaughter is also a DNA forensic sample offence, so a Court can order the retention of a DNA sample of a person found guilty of workplace manslaughter if it is in the interests of justice to do so.
If you are charged, or believe that you may be investigated and charged with this offence, early advice is crucial. What you say or do might have unforeseen consequences upon the investigation. Our experienced team of lawyers are familiar with the ever changing and dynamic nature of the criminal law and are ready with the knowledge and experience to provide you with the advice you need. We also liaise with your insurer because, depending on your policy, your legal fees may be covered by the terms of your insurance.
Wage theft became a criminal offende in late-2020 as a result of the Wage Theft Act. This Act created a number of distinct offences, with their maximum penalties for individuals shown in brackets:
- Dishonestly withholding of employee entitlements (10 years’ imprisonment);
- Falsifying an employee entitlement record (10 years’ imprisonment);
- Failure to keep employee entitlement record (10 years’ maximum);
- Hindering or obstructing inspectors or their assistants (60 penalty units, or 2 years’ imprisonment if threats or assaults are involved);
- Failing to take oath or answer questions from an inspector (2 years’ imprisonment);
- Giving false or misleading information to an inspector (2 years’ imprisonment)
For body corporates charged with the above offences, substantial monetary penalties apply rather than imprisonment. Generally, it is expected that most prosecutions will take place in the Magistrates’ Court. However, prosecutions where the quantum of the alleged theft is over $100,000 must be heard in the County Court before a jury.
For the primary offence under this act, that of dishonestly withholding employee entitlements, the prosecution must prove the following beyond a reasonable doubt:
1. The employer withheld all or part of an employee entitlement; or
2. Authorised another person to withhold the whole or part of an employee entitlements; and
3. The entitlement was owed from the employer to the employee; and
4. Did so dishonestly.
Consent by the employee is irrelevant if the entitlement is reduced to an amount less than the minimum benefit or award required under relevant laws. It is a defence to a charge if it can be provided that the employer had exercised due diligence to pay or attribute the employee entitlements to the employee. It is noted that the laws may also impart criminal liability on other entities, such as officers of an employer, as well as bodies corporate and partnerships. At the forefront of mind, when considering the consequences of being accused of this offence, is the reputational damage. High profile wage theft cases and allegations can destroy reputations, businesses and livelihoods that took years to build. They can also be adversely affected by the media attention and misinformation that sometimes develops about company structures, the circumstances of alleged wage theft and measures that were put in place to correct or stop such practices. Accordingly, early advice and intervention is essential.
Galbally Parker Lawyers
The laws surrounding these new offences are complex and if you or your company is charged with wage theft or workplace manslaughter, it is necessary to retain the services of an experienced defence lawyer at an early stage. Ideally, this is before you make any comment to police or investigators. Please call Galbally Parker Lawyers on (03) 9670 8771 and one of our lawyers will guide you through the initial interview process and, if necessary, the court proceedings.
Content accurate as of January 2021.