COVID-19 & Industrial Manslaughter

4 June 2020

By 1 July 2020, Victoria will introduce industrial manslaughter laws for the first time. At the same time, Australia continues its efforts to contain COVID-19, including significant restrictions on work and workplaces. Tom Earls from Fair Work Lawyers explores the issues.

By 1 July 2020 Victoria will introduce industrial manslaughter laws for the first time. This occurs at the same time as Australia continues its efforts to contain the Coronavirus, including significant restrictions on work and workplaces.

The appearance of Coronavirus clusters has led to the obvious question of whether an employer whose workplace causes an infection that ultimately leads to a fatality could be prosecuted under those laws? The short answer is yes. An employer that failed to take any steps to consider or manage the risks could face prosecution and this could extend to industrial manslaughter.

Industrial manslaughter occurs where a person (including corporation, but not including an employee), who owed a duty of care, breaches that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or illness, the breach was done consciously and voluntarily and that breach causes death.*

Like all safety risks, the risk of contracting Coronavirus must be assessed and managed. Although there are State by State differences, the basic premise is relevantly the same. Each employer must conduct a risk assessment and implement controls based on what is reasonably practicable.

There are freely available guides published by Commonwealth and State governments about precautions to manage Coronavirus risks. These requirements have rapidly evolved and continue to do so. Failing to consider this information (including as it evolves), conduct appropriate risk assessments and to implement controls consistent with those risk assessments could lead to prosecution.

Given the above definition, it is unlikely that a firm that made a good faith attempt to manage these risks would face a manslaughter charge. However, prosecution under existing safety laws can still arise where the employer has failed to ‘take all reasonably practicable steps’ to minimise risks to safety and these offences can arise even without the ‘deliberate’ elements that characterise the manslaughter laws.

Each firm should prepare clear protocols on managing these risks taking into account available information. At a practical level, these protocols can also serve a positive purpose, ensuring business continuity in the face of the potential for further lockdowns.

Importantly, this does not mean that every government recommendation needs to be implemented. However, the information should be considered as part of the risk assessment process.

* Note: this is drafted from a Victorian perspective. Some other jurisdictions already have similar laws and all States have laws that include potential jail time for serious breaches (ranging from 5 years to life). While the provisions are similar there are material differences that should be considered.

Tom Earls is a Founding Partner of Adelaide-based Fair Work Lawyers. This information has been developed in consultation with the ACA Industrial Relations Committee. The information contained here is general in nature and does not constitute legal advice. Each circumstance is different and requires consideration of a variety of matters. Clients should seek legal advice in relation to any particular circumstances.

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