On 12 October 2017, the Queensland Parliament passed the Work Health and Safety and Other Legislation Amendment Bill 2017 (Qld) (Bill), which introduced new industrial manslaughter provisions and other amendments to the Work Health and Safety Act 2011 (Qld) (WHS Act).
The Work Health and Safety and Other Legislation Amendment Act 2017 (WHS Amendment Act) is the Palaszczuk Government's response to the independent Best Practice Review of Work Health and Safety in Queensland (Review) conducted by Mr Tim Lyons (former Assistant Secretary of the Australian Council of Trade Unions).
Commissioned by the Government in October 2016, the Review was in response to the death of four visitors to the Dreamworld theme park on the Gold Coast and the death of two workers at the Eagle Farm racecourse earlier in 2016.
Queensland Industrial Relations Minister the Hon Grace Grace said the new laws would leave negligent employers culpable in workplace deaths with nowhere to hide.1 The industrial manslaughter provisions of the WHS Amendment Act commenced on assent on 23 October 2017.
WHAT ARE THE NEW INDUSTRIAL MANSLAUGHTER LAWS?
The Bill creates two new criminal offences of industrial manslaughter, an 'employer' and a 'senior officer' offence, where:
- a worker dies (or is injured and later dies) in the course of carrying out work;
- the person conducting a business or undertaking (PCBU) or senior officer's conduct (either by act or omission) causes the death of the worker; or
- the PCBU or senior officer was negligent about causing the death of the worker by the conduct.
A PCBU found guilty of industrial manslaughter may be liable for a fine of up to $10 million, whilst an individual (senior officer) may be liable to a term of up to 20 years' imprisonment.
The new industrial manslaughter offence is included in the Work Health and Safety Act 2011 (Qld) (WHS Act), as well as the Electrical Safety Act 2002 (Qld) and Safety in Recreational Water Activities Act 2011 (Qld).
EIGHT KEY FEATURES OF THE NEW INDUSTRIAL MANSLAUGHTER LAWS
- They do not yet apply to the mining sector. Further consultation will occur before amendments to resource industry-specific health and safety legislation are introduced to Parliament.
- A 'senior officer' is distinct from an 'officer' to whom the current due diligence obligations apply. A senior officer is defined more broadly as any person who is concerned with, or takes part in, the corporation's management, regardless of whether the person is a director or the person's position is given the name of executive officer.
- Volunteers are excluded from potential liability, however a senior officer of an unincorporated association (other than a volunteer) may commit an offence of industrial manslaughter.
- Unlike existing offences under the WHS Act, which do not require a death or serious injury to occur (only exposure to the risk), the new provisions only apply in the event of a fatality.
- Unlike existing offences under the WHS Act, the laws only apply in the case of a death of a worker, as opposed to a death of any person.
- The standard of criminal negligence applies, i.e. a person will be found negligent where their conduct so far departs from the standard of care expected to avoid danger to life, health and safety, and the conduct substantially contributed to the death.
- The maximum penalties outlined above are significantly higher than those previously available for reckless breaches of health and safety legislation, which were a maximum fine of up to $3 million for a company, and imprisonment of up to five years for an individual.
- The guidelines for prosecutions for industrial manslaughter will be the same as those for manslaughter under the Queensland Criminal Code.
It is also important to note that a number of amendments were made to the Bill before it was passed, specifically:
- excluding the availability of an 'accident' defence from the offence of industrial manslaughter; and
- clarifying that, for the industrial manslaughter offences, a reference to a worker carrying out work includes where the worker is on a work break.
WHAT ARE THE IMPLICATIONS FOR QUEENSLAND EMPLOYERS AND THEIR SENIOR OFFICERS?
The new offences of industrial manslaughter do not alter an employer's primary duties under the WHS Act, nor those of its 'officers' to exercise due diligence. All workers still have duties, for example, to take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons.
What has changed, however, is the addition of new offences and penalties in situations of criminal negligence causing death, which extend to the broader category of "senior officers".
Queensland companies should act to identify their senior officers and take steps to ensure they understand their obligations. In light of the reforms, it is also timely for employers to review their safety management systems to ensure control measures are in place to eliminate or minimise the organisation's fatal hazard risks, so far as reasonably practicable, and that those measures are being implemented effectively.
WILL OTHER AUSTRALIAN JURISDICTIONS FOLLOW?
Currently, the only other Australian jurisdiction with a similar industrial manslaughter offence is the ACT. While the ACT industrial manslaughter offence has been in operation since 2004, to date there have been no prosecutions that have proceeded under those provisions.
Industrial manslaughter laws have been proposed in a number of other States, including New South Wales, Victoria and South Australia, but have not been passed.
According to Safe Work Australia,2 the Ministers responsible have agreed to review the model WHS laws in 2018. Given Queensland's reforms to the WHS Act, it seems likely the introduction of industrial manslaughter offences in the model WHS laws will be considered as part of that review.
OTHER SIGNIFICANT AMENDMENTS TO THE WHS ACT
The Bill also implements a number of other significant amendments to the WHS Act as recommended by the Review.
- establishing an independent statutory office for work health and safety prosecutions (Office of the WHS Prosecutor);
- expanding the jurisdiction of the Queensland Industrial Relations Commission to include hearing and determining work health and safety disputes;
- restoring the status of codes of practice as existed under the former WHS Act 1995, to require, where relevant, the safety measures in a code of practice to be followed unless equivalent or superior measures can be demonstrated;
- prohibiting enforceable undertakings being accepted for all contraventions, or alleged contraventions, of the WHS Act that involve a fatality;
- reintroducing the ability for a person conducting a business or undertaking to appoint a WHS Officer; and
- enhancing support for, and the role of, Health and Safety Representatives.
1Media statement, Minister for Employment and Industrial Relations, Minister for Racing and Minister for Multicultural Affairs, New industrial manslaughter laws to protect Queenslanders on the job, 12 October 2017: http://statements.qld.gov.au/Statement/2017/10/12/new-industrial-manslaughter-laws-to-protect-queenslanders-on-the-job.
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