Workplace Manslaughter Under the OHS Act 2004 (Vic)

What it is

Section 39G of the Occupational Health and Safety Act 2004 (Vic) is the Victorian workplace manslaughter offence, commenced 1 July 2020. Victoria was the second Australian state to enact a specific workplace death offence after Queensland (2017).

Victoria uses "workplace manslaughter" rather than "industrial manslaughter" reflecting the OHS Act framework's employer-centric approach. The substantive elements are broadly comparable to the model WHS Act section 34C offences in other states.

The elements

Section 39G applies where an employer or self-employed person engages in conduct that:

• is negligent
• constitutes a breach of an applicable duty owed by the employer or self-employed person to another person
• causes the death of another person

The prosecution must establish negligence (a lower threshold than recklessness) and causation to criminal standard.

Officer liability

Section 39G(3) extends the offence to officers of a body corporate where the officer's conduct is negligent and causes death. Officer liability sits alongside corporate liability, and both can be prosecuted for the same incident.

The Victorian officer definition captures directors, secretaries, and executive officers with senior control. That is broadly aligned with the model WHS Act senior officer definition.

Penalties

Section 39G penalties are set in penalty units and calibrated to the Victorian penalty unit value (adjusted annually).

• individual: up to 25 years imprisonment
• body corporate: up to approximately $19.8 million (tied to penalty units)

Victoria's corporate penalty is among the highest in Australia, comparable to NSW ($20 million) and QLD ($20 million). WA at $10 million is significantly lower.

Case law

Victoria has had several workplace manslaughter prosecutions since 2020 commencement. Construction industry cases have involved falls, crushing incidents, and confined-space asphyxiation. Prosecutions target both corporate employers and individual directors.

Interaction with OHS Act category offences

Section 39G is prosecuted concurrently with or in lieu of section 31 (reckless endangerment) or section 32 (breach of primary duty) offences depending on the evidence. Where a workplace death occurs, WorkSafe Victoria typically brings both charges.

Distinct Victorian framework

Victoria's framework differs from the model WHS Act industrial manslaughter offences in three respects:

• terminology: "workplace manslaughter" rather than "industrial manslaughter"
• duty-holder: "employer" and "self-employed person" rather than "PCBU"
• statutory location: OHS Act 2004 rather than model WHS Act 2011

A residential builder operating in Victoria and other states needs Victorian-specific compliance analysis rather than reliance on model WHS Act preparation.

How Victoria compares

Victoria's penalty scale is at the top of the Australian range for corporate penalties and matches the 25-year individual imprisonment maximum found in NSW. Victoria was the second jurisdiction to legislate workplace death as a specific offence, following Queensland in 2017.

Since 2020 the trend has been for other Australian jurisdictions to catch up with specific offences: WA (2022), NT (2020), SA (July 2024), TAS (October 2024) and NSW (2024 amendments). ACT has both WHS Act and Crimes Act pathways.