VIC: Victoria’s Workplace Manslaughter Laws – Important reminders for Owners Corporations

This article by Leila Idris, Partner and Eleni Tasiopoulos, Lawyer, Grace Lawyers addresses the severe consequences of failing to maintain workplace safety.

As of 1 July 2020, Victoria saw a new set of occupational health and safety laws come into effect by amendments to the Occupational Health & Safety Act 2004 (Vic) (OHS Act) by the Workplace Safety Legislation Amendments (Workplace Manslaughter and Other Matters) Bill 2019 (Vic). The new legislation applies to the negligent conduct of employers (or other duty holders) causing death to whom a duty of care is owed. The penalties under the new legislation are significant and include a maximum of 25 years imprisonment for individuals and a fine in excess of $19 million for body corporates.

The recent case of R v LH Holding Management Pty Ltd & Laith Hanna¹ is the first case an employer was convicted under Victoria’s new workplace manslaughter laws. It underscores crucial lessons for owners corporations, particularly in overseeing tradesmen and suppliers working on strata schemes. Below is a summary of the key learnings and safety considerations.

Overview

On 19 February 2024, LH Holding Management Pty Ltd (LH Holding) and Laith Hanna (Hanna), the sole director and secretary of LH Holding, were sentenced by the Victorian Supreme Court following guilty pleas to the workplace manslaughter of Michael Tsahrelias (Tsahrelias). LH Holding was fined $1.3 million, and Hanna was sentenced to a two-year Community Correction Order (CCO), with conditions including that Hanna complete 200 hours of community work and undertake a forklift operation course. Additionally, LH Holding and Hanna, by consent, were ordered to pay $120,000 in compensation to Tsahrelias’s sister, in turn for Tsahrelias’s parents compensation claims being dismissed.

Background

LH Holding operated a stonemasonry factory under the direction of Hanna. Tsahrelias and his father, through their family business, were subcontracted by LH Holding to work at the factory.

On 12 October 2021, Hanna was operating a forklift to move an empty A-frame steel rack from inside the factory to an outside area. Upon manoeuvring the forklift, the 2-metre suspended load began to swing and Tsahrelias attempted to stabilise the load with his arms. Hanna, with Tsahrelias in close proximity, then began to reverse the forklift up the sloped driveway, however the forklift lost balance, began to tip sideways and toppled over, crushing Tsahrelias beneath it. The incident, captured by CCTV, revealed its severity and Hanna’s failure to ensure Tsahrelias’ safety.

Charges and sentencing

Following the incident, LH Holding was charged under section 39G(1) of the OHS Act for workplace manslaughter, and Hanna was charged under section 39G(2) as an officer whose failure to take reasonable care contributed to the manslaughter. Both Hanna and LH Holding pleaded guilty to the charges.

Hanna, in his interview with WorkSafe, acknowledged that he had failed to follow the safety protocols and that more caution should have been exercised given the elevated and irregular load and the sloped driveway. Ultimately, LH Holding and Hanna were found negligent for breaching their duty of care.

In sentencing, the court considered extensive submissions, including victim impact statements from Tsahrelias’ family, the guilty pleas, mitigating factors, deterrence and prospects of rehabilitation.

The court imposed the following sentences:

• LH Holding was fined $1.3 million.
• Hanna was sentenced to a two-year community detention order (CCO), with conditions to complete 200 hours of community work and a forklift operation course.
• LH Holding and Hanna were ordered to pay $120,000 in compensation to Tsahrelias’ sister.

The sentences and penalties imposed on LH Holding and Hanna aim to serve as a deterrent and reinforce the need for strict compliance with occupational health and safety regulations to prevent future tragedies.

Key takeaways for owners corporations

The workplace manslaughter provisions under the OHS Act (Part 5A) are designed to prevent workplace deaths and impose severe penalties to reflect the seriousness of breaches leading to fatal incidents.

Although the OHS Act refers to the legislation applying to individuals and bodies corporate, the OHS Act extends to owners corporations (OC) as a legal entity. Accordingly, and in light of the new legislation, an OC ought to be remain mindful of the following:

1. An OC has a duty of care to maintain the common property and to maintain a safe environment for anyone who enters or undertakes work.
2. An OC’s duty of care is to all employees, contractors, owners, residents, visitors or general members of the public who enter common property.
3. The new laws concern existing duties of an OC under the OHS Act, however their penalties are now more significant when a breach results in death.
4. To reduce risk, the OC must be proactive at discharging its functions to repair and maintain common property and its duties to act in good faith and with due care and diligence in ensuring all safety protocols and measures are in place to avoid any catastrophic incidents.

An OC may manage occupational health and safety in several ways. For example:

• Risk assessments: the OC may obtain a health and safety occupational report to assess the common property to identify potential hazards and prevent accidents.
• Safety audits: if the OC has employees, it may engage WorkSafe to carry out an occupational health and safety audit on the common property.
• Repair and maintenance: promptly attending to repair and maintenance of common property.
• Communication: inform lot owners and occupations of any hazards and provide clear instructions to avoid danger.
• Maintenance Plan: the OC reviews its maintenance plan and engages specialised professionals to inspect the common property to assist with risk assessment, maintenance fund forecast, capital works and budgeting. Even if there is no maintenance plan, an OC should review maintenance of works that are necessary, the cost and timing for the maintenance work.

Summary

The tragic case of Tsahrelias highlights the severe consequences of failing to maintain workplace safety and serves as a stark reminder to OCs of the critical importance of safety in managing tradesmen and suppliers within strata schemes. OC managers must actively engage in creating and maintaining a safe working environment, ensuring all safety measures are in place and that legal requirements are met. Through ensuring all safety protocols are followed, an OC can prevent such incidents, safeguard lives and avoid severe legal and financial repercussions.

footnotes

1. R v LH Holding Management Pty Ltd & Hanna [2024] VSC 90. [2024] VSC 90.

Leila Idris, Partner and Eleni Tasiopoulos, Lawyer
Grace Lawyers
E: [email protected]

This post appears in Strata News #728.

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This article has been republished with permission from the author and first appeared on the Grace Lawyers website.

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