​An interview with Mark Mackey, Metro Tunnel Project

On 1 July the long awaited Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (nicknamed the ‘manslaughter’ law) will be coming into effect.

I wanted to find out the importance and gain a better understanding of the legislation, so I sat down for a chat with Mark Mackey, Senior Safety Advisor on the Cross Yarra Partnership (Metro Tunnel) infrastructure project. Mark has been working in Health and Safety for around 15 years, working on major road, rail and mining infrastructure projects in WA, NSW and Victoria.

The Metro Tunnel project is an $11 billion dollar, multi-disciplinary, city shaping project. It includes the construction of twin 9km rail tunnels from Kensington to South Yarra and new underground train stations at Arden, Parkville, CBD North, CBD South and Domain.

See below as Mark shares his thoughts and opinions on the Workplace Safety Legislation Amendment and its importance.

1. What is the new legislation?

The Workplace Safety Legislation Amendment Workplace Manslaughter and Other Matters) Bill of November 2019 (Victoria) will result in a much greater spotlight on compliance with existing Occupational Health Safety (OHS) laws, as well as introducing a new offence of industrial manslaughter.

The new laws will attract the highest penalty in the OHS Act, introducing maximum fines of approximately $16.5m for employers, jail terms of up to 20 years and fines of up to $1.65m for officers whose actions or omissions:

• Cause the death of a worker or member of the public

• Involve a breach of an OHS duty

• Are found negligent

2. Is this a significant change to current practices?

Not in relation to our obligation or duties to provide a safe system of work, what it does is highlight and increase the consequences and severity of the fines and imprisonment under the OHS Act.

3. Why has this legislation been brought in?

It was an election promise by the Daniel Andrews Labour Government in May 2018– they pledged to create and draft the new industrial manslaughter laws. This was driven by the tragedy in 2013 when three members of the public (pedestrians) were killed when part of a hoarding wall collapsed onto Swanston Street.

4. Who will this affect the most?

It will apply to organisations (including bodies corporate, partnerships, unincorporated bodies, and unincorporated associations), self-employed persons as well as officers.

5. Will the legislation change be missed by many directors and business owners?

In my opinion I believe it will be missed by many due to the complexity of their businesses and processes, especially larger organisations that have robust systems and processes aligned to their OH&S management systems.

6. Are the penalties too severe?

A very difficult question to answer, I would highlight that a loss of life is a penalty itself and one that has an everlasting consequence to the people that are left behind.

7. Does this legislation change put all the responsibility on the business rather than someone who makes a mistake on site?

Basically “yes”. A person, body corporate, an unincorporated body, association or a partnership (including government entities and officers of these entities – but not employees or volunteers); who owes applicable duties to ensure the health and safety of another person in the workplace.

The below people within the organisation owes the applicable duties under the new legislation:

• Directors and company secretaries

• Individuals of a partnership or joint venture

• The trustee of a trust

• Persons who participate in the making of decisions that affect a substantial part of the organisations’ business

• Persons who have the capacity to significantly affect the organisations financial standing

8. What can you do to protect yourself and your business?

In my opinion it would automatically trigger a change management review of your business, including a subsequent review of your critical risk’s and company exposure. I’d do this by;

• Reviewing all potential critical risks and hazards in the workplace.

• Review associated incident actions and plans, review the data analysis including capturing trends and risk exposures within your organisation, update mitigation strategies and controls within the business. 

• Review mental health risks of your people, ensure this is highlighted within your organisation and aligned with OHS approach with associated risk assessments and plans.

• Complete a review on existing policies, ask your employees if these policies are working in practice? Document the feedback and make effective changes to employee training.

• The legislation is being introduced to hold senior leaders accountable. Review the awareness and training of your people, including your senior leadership group as they drive an organisations’ culture and can most effectively implement change.

• Lastly, I would review your business insurance to ensure adequate coverage to your organisation and officers of the company.

Thanks Mark for taking the time to answer our questions and give us insights into the new law changes and what they mean.

For further information regarding The Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 please visit: https://www.worksafe.vic.gov.au/victorias-new-workplace-manslaughter-offences