Australia: Workplace relations and safety - senior managers set to come under the spotlight in 2018

Last Updated: 18 January 2018
Article by Michael Selinger
Most Read Contributor in Australia, September 2018

Last year saw some important work health and safety legislative developments that are likely to shape the way regulators deal with businesses in 2018, particularly in the construction and labour hire industries.

Senior managers across all organisations and industries are also set to come under the spotlight.

We summarise the key changes that took place in 2017 and outline how they will impact you and your organisation over the next 12 months.

Non-conforming building products

The Grenfell disaster in the UK and the Lacrosse building fire in Melbourne led to a nationwide focus on non-conforming building products. Legislation has been introduced to combat the risk to health and safety from these products. In NSW the Building Products (Safety) Act 2017 (Act) was introduced. Amongst other regulatory powers, such as the ability to ban the use of unsafe products and issue rectification orders, the Act grants the regulator a raft of investigatory powers to support the identification and elimination of unsafe building products. The application of the Act is much broader than cladding and its reach is not confined to residential buildings. The NSW laws followed on from legislative amendments in Queensland which also banned non-conforming building products.

Industrial manslaughter laws

In response to the Dreamworld theme park tragedy, the Queensland government introduced new industrial manslaughter laws. These laws are likely to have a significant impact on the manner in which fatal incidents are investigated and prosecuted.

The regulator will now be able to prosecute both a 'person conducting a business or undertaking' (PCBU) and a 'senior officer' if:

  1. a worker dies in the course of carrying out work (including where the worker is on a break) for the business or undertaking (or is injured in the course of carrying out work for the business or undertaking and later dies)
  2. the PCBU's or senior officer's conduct (either by act or omission) causes the death of the worker
  3. the PCBU or senior officer is negligent about causing the death of the worker by the conduct

If the offence is proved to the criminal standard, then the PCBU will face a penalty of up to $10 million if it is a corporation or, in the case of a senior officer or PCBU who is an individual, they will face up to 20 years' imprisonment.

Labour hire licensing laws

The introduction of labour hire licensing laws in Queensland and South Australia will impact the management of health and safety for contractors.

The new Labour Hire Licensing Act 2017 (Qld), to commence in Queensland on 16 April 2018, aims to prevent the exploitation of workers by introducing a labour hire licensing scheme imposing hefty penalties for non-compliance. More details on this can be found here.

In 2018, as part of the focus on labour hire licensing laws, employers should expect that contractor arrangements involving labour hire will be closely examined by regulators. This will extend to include workers compensation coverage and the discharge of the duty of care in respect of the health and safety of labour hire workers, particularly vulnerable workers such as migrants and young workers.

New international standard

Although not a legislative change, the WHS international standard, 'ISO 45001', was approved in its final form in 2017 and is likely to be published in March 2018.

As with the current Australian/New Zealand standard 4801, the international standard 45001 is designed to provide organisations with a framework for creating a safe workplace by implementing systems and processes to eliminate or reduce workplace injury as well as continually improve WHS performance. The standard will assist an organisation to fulfil its legal requirements under the Australian safety laws by outlining an approach for the implementation of reasonably practicable steps to ensure safety. In a sign of an increased international focus on leadership as a critical component in ensuring better safety outcomes, the new standard includes greater requirements on top management to demonstrate leadership and commitment for the protection of all workers' safety.

Implementing and auditing against the new standard will be a matter for businesses to consider closely in 2018, particularly those businesses who are looking to ensure that they have accreditation or certification, including those wishing to tender for work.

Case law – the safety law landscape

We take a look at the prosecutions that the safety regulators across Australia commenced this year and also examine the most significant legislative changes that were implemented.


The safety regulators across Australia focused on some key risk areas when bringing enforcement proceedings this year.

Plant and machinery

Victoria led the way with unsafe systems of work prosecutions relating to plant and equipment. Three significant cases involved prosecutions of a bakery, a vegetable farm, an abattoir and manufacturer of steel products. Fines ranged from $25,000 to $80,000.

Working from heights

Prosecutions relating to working from heights was one of the most litigated risk areas in 2017. Five significant prosecutions involved a scaffolding company, a residential builder, a roofer, an arborist, and (perhaps ironically) a business that installed, maintained and inspected working at height fall arrest anchorage systems.

Fines ranged from $15,000 to $150,000. Directors were also fined and in one case the penalty was $25,000

Excavation and earthworks

Excavation work remained a high risk activity which resulted in a number of prosecutions during the year. Two significant cases involved a building company and also a crane company. In one case there was a structure collapse during demolition which injured workers and in the other case there was a trench that had not been properly supported and so collapsed on workers causing them injury. The seriousness of these incidents were reflected in the penalties with fines ranging from $90,000 to $120,000.


There was a lot of activity in relation to asbestos this year, with regulators across the country, and in particular in the ACT and NSW, focusing on the challenges posed by the use of 'fluffy' asbestos in home insulation. Significant media attention about the Perth Children's hospital with ceiling panels that contained asbestos prompted all regulators to be on high alert for similar incidents in their own jurisdictions.

A significant Queensland case saw the Queensland Department of Transport and Main Roads be prosecuted and fined $175,000 when they allowed their workers to use power drills to repair an old bridge that contained asbestos. The bridge, which was not recorded as having any asbestos, was being repaired in the absence of any systems of processes to deal with the potential risk of asbestos exposure.

Unsafe equipment

The risks posed by heavy plant and equipment was also heavily scrutinised. In a significant case in Victoria, the regulator successfully appealed a penalty of $40,000 as being manifestly inadequate in relation to an excavator overloading and almost killing two people. The penalty was increased to $175,000. In another Victorian decision, a crane collapsed when moving an empty 40 foot shipping container, again narrowly missing a nearby worker.

Hazardous substances

In Victoria, a significant prosecution resulted in a penalty of $30,000 after a worker was rendered unconscious after entering a confined space that had a harmful level of contaminate vapour. No job safety analysis had been performed although the source of the hazardous fumes was known before the work was performed. In a NSW case a penalty of $60,000 and an order to pay $31,000 in costs to the prosecutor was imposed on a company that failed to put in place safe systems of work to deal with decanting all-purpose thinners. The company ignored the well-known risk of the volatility of the thinners and did not provide any training or information to its workers to control the risk.

Inadequate risk assessments

In three significant cases, Courts imposed fines of between $40,000 and $150,000 for failure to ensure proper risk assessments of work processes were undertaken. In one NSW case, an arborist failed to use simple mechanical devices to avoid injury to workers from an obviously fragile tree. This was the result of the arborist not properly assessing the risk of the particular tree. In another NSW case, the Court heard that the director of a road works company had modified a vehicles water tank to allow it to hold kerosene but had failed to perform a risk assessment to eliminate the risk of an explosion, which ultimately occurred. And in Victoria, a tree removal company failed to note the risk posed by nearby power lines. The power lines were left live and during the works, a tree collapsed on the power line and electrocuted a worker.

What to expect in 2018

We saw an increase in the number of prosecutions across the country in 2017 with particular focus on these risks of injury.

The regulators will continue to focus on these areas due to the frequency of incidents. We can also expect that the Courts will continue to impose significant fines and, in some cases, look at the personal liability of directors.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Michael Selinger
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