Today’s question is asking me to

… shed some light on the new Workplace manslaughter laws in Victoria, and how (if they do) they could potentially(?) affect Volunteers Managers (Captains, Lieutenants, Incident controller etc) with in CFA or other volunteer organisations in Vic?

I was provided with a copy of a messages that says:

As some of you may be aware there have been recent changes in Worksafe laws where managers can be held accountable for workplace injury and the like and that all CFA Stations are recognised as a workplace.

Unfortunately, the message does not say which ‘changes’ they are referring to.  The only ‘recent’ changes have been made by the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic).

Victoria has not adopted the model Work Health and Safety Act 2011. The relevant Act in Victoria is the Occupational Health and Safety Act 2004 (Vic) (‘the OHS Act’).  The OHS Act imposes duties on employers (ss 21-23) and employees (s 25). The Act doesnot refer to ‘managers’. It does refer to officers. An officer of a ‘body corporate, unincorporated body or association or partnership’ is defined by the Corporations Act 2001 (Cth) s 9 (see OHS Act s 5, definition of ‘officer’). The relevant definition is:

“officer” of a corporation means:

(a) a director or secretary of the corporation; or

(b) a person:

(i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

(ii)  who has the capacity to affect significantly the corporation’s financial standing; or

(iii)  in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or

 (c)  a receiver, or receiver and manager, of the property of the corporation; or

(d)  an administrator of the corporation; or

(e)  an administrator of a deed of company arrangement executed by the corporation; or

(f)  a liquidator of the corporation; or

(g)  a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

“officer” of an entity that is neither an individual nor a corporation means:

(a)  a partner in the partnership if the entity is a partnership; or

(b)  an office holder of the unincorporated association if the entity is an unincorporated association; or

(c)  a person:

 (i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

 (ii)  who has the capacity to affect significantly the entity’s financial standing.

A brigade captain may be an ‘officer’ in the sense that he or she is not one of the ‘other ranks’ but he or she is not an officer of the CFA.

Volunteers are not employees and the CFA and other volunteer organisations are not the employer of volunteers. The employer’s duty to people who are not employees (eg volunteers) is a duty to ‘ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23).

For the purposes of the OHS Act, a workplace is ‘a place, whether or not in a building or structure, where employees or self‑employed persons work’ (s 5). To the extent that employees of the CFA work at a CFA station it is their workplace, but it is not the workplace of volunteers. The employees may be responsible for ensuring that the work of the CFA does not pose an unreasonable risk to the safety of volunteers, but it does not impose equivalent obligation on volunteers.

Volunteers are explicitly excluded from relevant OHS offences. From 1 July 2020 there is a new offence of workplace manslaughter. That offence cannot be committed by a volunteer. Section 39G says (emphasis added):

(1)     A person who is not a volunteer must not engage in conduct that—

(a)        is negligent; and

(b)       constitutes a breach of an applicable duty that the person owes to another person; and

(c)        causes the death of that other person.

Penalty:           Imprisonment for 25 years for a natural person;

100 000 penalty units for a body corporate.

(2)        A person who is an officer of an applicable entity, and who is not a volunteer, must not engage in conduct that—

(a)        is negligent; and

(b)       constitutes a breach of an applicable duty that the entity owes to another person; and

(c)        causes the death of that other person.

Penalty:           Imprisonment for 25 years.

Other offences that may be relevant, when one talks about ‘managers’ are set out in s 144 ‘Liability of officers of bodies corporate’ and s 145 ‘Liability of officers of partnerships and unincorporated bodies or associations.’ Neither of those offences can be committed by volunteers (see ss 144(5) and 145(5)).

Discussion

I don’t know what the author of the message who said ‘…there have been recent changes in Worksafe laws where managers can be held accountable for workplace injury’ had in mind. That employees have duties under the OHS Act is not new.

The Workplace manslaughter laws and the obligations upon officers of organisations specifically exempt volunteers. It follows that ‘the new Workplace manslaughter laws in Victoria’ do not apply to volunteers as potential defendants.