Issues and Liabilities of employee’s death under OHS Law in Australia
The Occupational Health and Safety (OHS) Law of Australia has various legislations which specify the duties and obligations of the employer and co-workers towards each other at the workplace to ensure safety and health of the employees (WorkSafe Victoria, 2020). According to Gunningham (2008), the legislation, Occupational Health and Safety Act, 2004, has an immediate interest of the workers as they are to be affected in case of any hazard and they are the people who are familiar with all the risks associated with work and the workplace. In this present paper, the potential issues and liabilities aroused in the case of workplace death of Wills, an employee, will be analysed concerning the significance and the role of OHS law in Australia.
The death of Will was the consequence of workplace death occurred by another employee at the workplace in which he suffered injuries and later died in hospital after receiving treatment for 8 days. Considering the facts of this case vis a vis the OHS law, the potential issues of this case are if the death of Will an accident or an act of defeating the provisions of the OHS law. Apart from that, the provisions that have been revoked by this death of the employee, Will, and the obligations and liabilities of the employer associated with this case are another legal issue to be analysed. The liability of another employee, Yulbe, is also to be scrutinized in this present paper to understand all the potential legal issues associated with the case.
The OHS Law provides a duty of employers towards the health and safety of employees at the workplace provide clear instruction to ensure a safe and healthy workplace for the employees. The employer must maintain safety and an absence of any risk, which is reasonably practicable, in handling, use or storage or transport of plant or substances at the workplace (Section 21(2) (b), Occupational Health and Safety Act, 2004 (Vic)). The Workplace Injury Rehabilitation And Compensation Act, 2013 (SA) also provides for the rights and obligations of the employer. If there is any injury occurred to any employee in the course of employment, then the employer has the obligation to compensate the loss of the employee (Section 12(a), Workplace Injury Rehabilitation and Compensation Act, 2013 (SA)). The mismanagement of traffic at the shed where the vehicles are to be parked is undoubtedly a reasonably practicable health and safety concern on the part of the employer in the present case of Will. The provisions of Section 21(2)(e) of OHS Act, 2004 (Vic) has also been defeated which obligate the employer to instruct their employees and provide such training that the work of the employees can be carried out with health and safety. The employer of the workplace was under the obligation to consult employees and get an overview of all the possible health and safety hazards at the workplace which is also not met in this case by the employer (Section 35, Occupational Health and Safety Act, 2004 (Vic)).
This death of will is the result of conduct negligent on the part of the corporate body (Section 39E, (Section 39E, Occupational Health and Safety Act, 2004 (Vic)). The application of this particular provision of OHS Act suggests that the act of Yulbe is not materialistic but the conduct of corporate body in foreseeing this accident and the amount of reasonable care and conduct taken by them is the root cause of this workplace death. The act of Yulbe is an immediate consequence of the failure of the corporate body in providing adequate safety and health from the standard of care expected in such workplace. The amount of compensation, in this case, will be provided as per Section 235 of Workplace Injury Rehabilitation and Compensation Act, 2013 (SA).
A person employed at the workplace is not provided to take adverse action against another person owing to the fact that the person has not exercised his workplace right (Section 340, Fair work Act, 2009 (Cth)). This provision is notable for this case as Will could have exercised his workplace right and raised concern over the mismanagement in the shed regarding the parking of vehicles but this could not be considered as an adverse action against his death at workplace. The death of the employee is closely monitored to understand if that is the immediate result of employment contribution (S 82(1), Accident Compensation Act 1985 (Vic); S 34(1), WorkCover Queensland Act, 1996 (Qld)).
The case of Will can be interlinked with 9 years old, Glenn Chapman, who was recycling truck ‘runner’ and got killed by a truck reversed over him at the workplace, he was provided with a short session of ten minutes over the workplace safety which was inadequate clearly at the facts of the case (Johnstone and Quinlan, 2006). Will, similarly, got killed because of the lack of instructions and management on the part of the corporate body. In the case of Nydam v R, the Court dictated that the concern of workplace death will have to be linked with a high risk of death or injury occurring from falling short of standard care and precautions at the workplace. The body corporate will be held in this case of Will’s death as the other conditions concerning any injury or death has been fulfilled at the workplace by the other employees (Section 25, Occupational Health and Safety Act, 2004 (Vic)). Since the workplace death was notified by the other employees and the workplace manager informed about the accident of Will immediately and he was rushed to the hospital within an hour suggest that the employees present at the workplace have fulfilled their duty of cooperation and heath safety measures against the other employees.
Though the OHS law in Australia has had covered almost all the aspects of the work safety and health concern of the employees at the workplace and thus Will, in this case, will also get to have his family compensated post his death at workplace. Still, some critics have suggestions and recommendations for the OHS law to make it more efficient and practical for the workplace. As quoted by Henman (2002), the National Occupational Health and Safety Commission has provided that 97% of the death and injuries at the workplace are results of hazards which could have been prevented if reasonable care will be taken and thus the Australian employees are forced to meet with workplace accidents, injuries and deaths as the employers are not taking considerable care and reasonably practicable precautions (Australian Government, 2010).
As per Ndjoulou, Desmarais and Pérusse, (2015), there can be four approaches associated with the OHS laws which are effective to develop a progressive model. These approaches are the economic approach; the regulatory approach; the sustainable development approach and the occupational health and safety management system. These approaches will ensure better functioning of the OHS law in respect of the employment law in Australia.
Thus, in this case, the legal issues will involve the duties breached by the corporate body which resulted in the death of an employee at the workplace. The respective legislation relating to the OHS law which can govern and analyse the workplace death of Will at the workplace will also ensure the compensation to be given to his dependants. The liabilities of his death will be on the corporate body whose mismanagement and poor judgement of health and safety standards led to death. With the proper implementation of the OHS laws in the nation, the death of the employee at the workplace will be adequately analysed in the Court putting the organisation as the offender here.
The relevance of Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act, 2019 to Will’s Case
This new Act has been coming into effect from July 1, 2020, and has a retrospective effect on the cases. The legislation has emphasised on strict penalty over the negligent conduct leading to the death of the employees at the workplace and has not provided significant new laws but stressing over the concern of providing significance to the risk associated with the lives of worker and the severe consequences directly affecting the employer (WorkSafe Victoria, 2020). Considering the facts of the case of Will's death, the relevance of the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act, 2019 will be analysed hereinafter in this paper. This part of the paper aims to analyse the elements and the provisions of the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act, 2019 concerning Will's case to understand the various aspects of legislation with regards to accidental death occurring at the workplace in the nation.
The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act, 2019 provides for few conditions to be met to analyse and prosecute the offender under this Act. The conditions are (1) the person who has been charged with the death of the victim must be a person of the corporate body and not an employee or the self-employed person; (2) the victims must owe a duty of care from the offender which has been breached resulting in his death; (3) the breach of the duty is a result of negligent conduct and (4) the person who breached the duty must have acted consciously and voluntarily at the time of the occurrence of the death of the victim ( Clyde & Co, 2019).
Considering these elements that are to be fulfilled to get prosecuted under this Act, the case of Will’s death has the element of conduct negligence occurred on the part of the corporate body as they failed to procure safety and health standard at the workplace which resulted in that accident by Yulbe. Though Yulbe is the immediate person whose action resulted in the manslaughter act and he can be charged with this offence if he is just not the employee but an officer as well in the organisation. Notably, the employer of this organisation has failed to observe all the health and safety standards which should be provided as reasonably practicable in handling, storage and transport of plant or substances at the workplace (Section 21(2) (b), Occupational Health and Safety Act, 2004 (Vic)).
The designation of an officer is a must for charging Yulbe under the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act, 2019 (Lexology, 2019). The objective behind such law will be the prosecution against the person or organisation who has the authority to maker significant changes in the functioning and management of the organisation. On the other hand, Yulbe has been designated with the post of the employee like Will and hence he cannot be charged with such offence under this Act.
The organisation can be yet prosecuted considering the relevant facts of the case which clarifies the negligent conduct to be part of the mismanagement by the organisation which has resulted in the injuries to will which succumb death to him. In the case of a Sydney District Court, the director of the company was fined with an amount of $360,000 when one of his employees gets crushed to death by the machine, excavator (The Sydney Morning Herald, 2017). Being a case of 2017, such damage paid by the employer was exemplary for the case. Such a judgment can be pronounced in this case of Will with the application of the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act, 2019 where the organisation is to be taken as the offender for this manslaughter considering their negligent act to be the immediate reason of the death of Will at the workplace.
The application of this act in the case will lead to a penalty of an amount not exceeding $16.5 million and imprisonment of 20 years for the offender of the workplace manslaughter (Sayfa Group, 2020). This case will even work as an example where the negligent conduct of the organisation will be punished even though the employee has led to such death of the victim. This will be a milestone in the field of employment law where the organisation usually gets rid of the penalty showing the breach of duty of the fellow employee resulting in the manslaughter at the workplace.
S 34(1) of WorkCover Queensland Act, 1996 (Qld)
S 81(2) of Accident Compensation Act 1985 (Vic)
Section 12(a) of Workplace Injury Rehabilitation and Compensation Act, 2013 (SA)
Section 21(2) (b) of Occupational Health and Safety Act, 2004 (Vic)
Section 235 of Workplace Injury Rehabilitation and Compensation Act, 2013 (SA)
Section 340 of Fair work Act, 2009 (Cth)
Section 35 of Occupational Health and Safety Act, 2004 (Vic)
Section 39E of Occupational Health and Safety Act, 2004 (Vic)
Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act, 2019
Australian Government. (2010). Liability for injury or death. Retrieved from: https://www.alrc.gov.au/publication/essentially-yours-the-protection-of-human-genetic-information-in-australia-alrc-report-96/33-workers-compensation/liability-for-injury-or-death/
Clyde & Co. (2019). Workplace Manslaughter Offences Become Law in Victoria. Retrieved from: https://www.clydeco.com/en/insights/2019/11/workplace-manslaughter-offences-become-law-in-vict?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
Gunningham, N. (2008). Occupational Health and Safety, Worker Participation and the Mining Industry in a Changing World of Work. Economic and Industrial Democracy. 29. 336-361. DOI: 10.1177/0143831X08092460
Johnstone, R. and Quinlan, M. (2006). The OHS Regulatory Challenges Posed by Agency Workers: Evidence from Australia. Employee Relations. 28. DOI: 10.1108/01425450610661243.
Lexology. (2019). Workplace Manslaughter Offences Become Law in Victoria. Retrieved from: https://www.lexology.com/library/detail.aspx?g=be9da2a5-2086-42c1-a379-85f5bb96a6ca
Ndjoulou, F. Desmarais, L. and Pérusse, M. (2015). Employer Responsibility for Occupational Health and Safety: Challenges, Issues and Approaches. Journal of Management Policies and Practices, 3(1), 1-8. DOI: 10.15640/jmpp.v3n1a1
Sayfa Group. (2020). New Workplace Manslaughter Laws – Are You Protected?. Retrieved from: https://sayfa.com.au/new-workplace-manslaughter-laws/
The Sydney Morning. (2017). Business, director fined $360,000 after man crushed by excavator. Retrieved from: https://www.smh.com.au/business/workplace/business-director-fined-360000-after-man-crushed-by-excavator-20171109-gzi4f9.html
WorkSafe Victoria. (2020). Occupational health and safety – your legal duties. Retrieved from: https://www.worksafe.vic.gov.au/occupational-health-and-safety-your-legal-duties
WorkSafe Victoria. (2020). Victoria's new workplace manslaughter offences. Retrieved from: https://www.worksafe.vic.gov.au/victorias-new-workplace-manslaughter-offences
Nydam v R  VR 430
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