Queensland lawmakers take a look at their disappointing WHS performance
Workplace safety performance in Queensland [2016/17] was disappointing. A review was undertaken after 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.
Following this review, on 12 October 2017, the Queensland Parliament passed the:
Work Health and Safety and Other Legislation Amendment Bill 2017 (Qld) (Bill), introducing new industrial manslaughter provisions and other amendments to the;
Work Health and Safety Act 2011 (Qld) (WHS Act).
THE NEW ‘INDUSTRIAL MANSLAUGHTER’ PROVISIONS
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 [being the actual organisation] 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).
Industrial manslaughter is about a workplace death or deaths, not serious injuries. 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.
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, 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.
Also note that these changes:
exclude the availability of an ‘accident’ defence from the offence of industrial manslaughter; and
clarify that, for the industrial manslaughter offences, a reference to a worker carrying out work includes where the worker is on a work break.
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 is the addition of new offences and penalties in situations of criminal negligence causing death, which extend to the broader category of “senior officers”, a term not previously used.
WHAT YOU NEED TO DO
Queensland companies should act to
Identify their senior officers - 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.
Take steps [awareness and training] to ensure senior officers understand their obligations.
Identify fatal hazards risks within the organisation’s activities that have a potential to cause a death or multiple deaths – risk assessment. Develop a Risk Register specifically for FATAL HAZARD RISKS.
Review the safety management system in line with the fatal hazard risk register to ensure control measures are in place to eliminate or minimise the organisation’s fatal hazard risks, so far as reasonably practicable, that those measures are being implemented and continuously monitored for their effectiveness.