FARMERS suffering the loss of a loved one through workplace accidents could be left vulnerable to heavy fines and imprisonment under new manslaughter legislation, peak industry bodies say.
The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 passed through the Victorian Parliament in a late Tuesday night sitting, and enshrined industrial manslaughter as an offence under the Occupational Health and Safety Act 2004.
The penalties include fines of up to $16.5M and 20 years imprisonment, and the laws will come into effect on July 1, 2020.
The Bill only applies to business owners and operators, self-employed workers, and officers, something which Victorian Farmers Federation president David Jochinke said places unreasonable risk and burden on agriculture operators when safety should be everybody's responsibility.
"We're concerned that if we're going to talk safety it has to be everybody," he said.
"Not at all were we opposing the fact that if there's a loophole, it needs to be closed."
That loophole meant directors potentially were not liable for a death on the work site, which Mr Jochinke said was where this Bill was born.
"We're not opposed to people being held to account for not complying with the law ... we're trying to enhance the Bill to make sure it would take into consideration that if you're working with, and then lose, your partner, the last thing you want on your mind is the threat of potentially being caught up in a manslaughter investigation."
The VFF, along with other organisations including Master Builders Victoria and the Housing Industry Association, jointly submitted a proposed amendment to the Bill calling for employees to be included in the offence and to exclude circumstances where an individual family business could be prosecuted in relation to the death of a relative.
However, the Bill passed its third reading in Parliament without any amendments.
"If we were able to achieve the point of holding everyone to account under the current WorkSafe rules, that would have been a far better outcome," Mr Jochinke said.
"But the government was keen to create a whole new set of legislation with the absolutely severe penalty for directors or the operators of businesses; that it could have potentially been included under WorkSafe laws to include people not necessarily captured by that would have been a far better outcome."
Mr Jochinke said he could recall two incidents in which families could have been prosecuted under the Bill if it had been in place at the time.
"I can think of a few instances where there's been tragedy and there would have been concern about this Bill going through, because they would potentially have been caught under this Bill having already lost one of their family members," he said.
The agriculture industry is overly represented in workplace fatality statistics.
Safe Work Australia is an Australian government statutory body that states at November 21, 2019 , there have been 144 Australian workers killed at work this year.
Over the last five years to 2018, there were 188 worker fatalities in the agriculture industry, which is 20 per cent of all worker fatalities over the period.
VFF vice-president Emma Germano issued a statement expressing the VFF's disappointment that the Bill passed without amendment.
"It is disappointing that the government has ignored the calls of all the employer organisations who were united in their calling for the laws to apply to employees, adequate protections for family business and the same legal standards under the criminal code to be extended to workplace manslaughter," Ms Germano said.
The government outlined during the debate that the Department of Public Prosecutions had prosecutorial discretion as to which cases should be subjected to the new workplace manslaughter legislation.
Ms Germano said "this offered little confidence to agricultural community who remain fearful of being subjected to a long, expensive and emotional legal process when a family are mourning the tragic loss of a loved one."
One politician who voted against the Bill was western Victorian representative and Derryn Hinch's Justice Party MP Stuart Grimley.
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In his second reading speech to the Bill, Mr Grimley said "The safety of workers should be a priority for all governments, at all levels... but I fear it may inspire unintended consequences".
He further reiterated that "Derryn Hinch's Justice Party believes that any workplace death is one too many" but that there are outstanding questions yet to be answered.
In his speech, Mr Grimley set out a potential scenario where a member of a family who own a farm is working on the land and is accidentally killed.
"Would the deceased person really want their family member to face up to 20 years' imprisonment?" he said.
The Bill also passes the investigatory powers onto WorkSafe with Victoria Police as a supporting body.
Many organisations had expressed concern that Victoria Police was better equipped and experienced to deal with manslaughter persecutions and trials, rather than WorkSafe.
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