Harmony or discord? Queensland introduces industrial manslaughter laws
On 12 October 2017, the Queensland parliament passed the Work Health and Safety and Other Legislation Amendment Bill 2017 (Qld) (Bill). The Bill introduces a new offence of industrial manslaughter, as well as making other changes to the Work Health and Safety Act 2011 (Qld).
The Bill comes in the wake of the Dreamworld tragedy in 2016, when four visitors died following a ride malfunction at the theme park. The Queensland Government commissioned the Best Practice Review of Work Health and Safety in Queensland (Review) in the wake of that and another, separate, incident involving the death of two workers at Eagle Farm racecourse.
What do RCSA members (labour hire and workforce management agencies) need to know about the new Bill?
The Bill creates a new offence in Queensland of industrial manslaughter. This offence occurs when a worker dies in the course of carrying out their work (or later dies from injuries suffered while carrying out their work) and:
the death of the worker was caused by the conduct of a senior officer or the person conducting a business or undertaking (PCBU); and
the senior officer or the PCBU was negligent about causing the death of the worker by their conduct.
A 'senior officer' is defined in the Bill as including someone who is concerned with or who takes part in a corporation's management. This is broader than the current definition of 'officer' under the harmonised WHS laws' due diligence provisions. It may capture junior and mid-level managers who are not otherwise covered by the definition of 'officer'.
Both senior officers and PCBUs (e.g. corporations) can be charged under the new provisions. Interestingly, ordinary workers ‒ even if they caused or were negligent in relation to another worker's death ‒ cannot.
Notably, the offence only applies to the death of a worker, and not other persons such as visitors to the workplace (meaning, for example, it could not have applied in the Dreamworld case). It also doesn’t apply to mining workplaces at this stage.
The maximum penalty for a corporation found guilty of industrial manslaughter is up to $10 million, while a senior officer (individual) may face up to 20 years' imprisonment.
Other key changes
The Bill also introduces a range of other changes to the Act which were recommended by the Review, including:
changing the way Codes of Practice operate, requiring that safety measures in a Code be followed unless a PCBU can show it is managing the relevant hazards and risks in a way that is equivalent to, or higher, than the standard required under the Code; and
strengthening the law relating to Health and Safety Representatives.
When do the changes come into effect?
The industrial manslaughter provisions and various other changes already have already taken effect from 23 October 2017.
The remaining provisions in the Bill take effect variously on 1 July 2018, or on a date still to be announced.
Where to now?
The changes in the Bill signal a further shift away from truly harmonised WHS laws, although the Queensland Government has indicated it will push for the amendments to be adopted nationally in future.
RCSA members with operations across different States and Territories should seek advice to ensure that they comply with their obligations in each jurisdiction, noting that Western Australia and Victoria have not adopted harmonised WHS laws at this stage.
If your business on-hires workers to another site, make sure there are appropriate checks and balances in place to ensure the host site is without risks to health and safety so far as reasonably practicable, particularly if workers will be working in a high-risk environment with the possibility of fatal accidents.
RCSA members with operations in Queensland should also take steps to determine who the 'senior officers' in your organisation are, and ensure those individuals are aware of their personal obligations.
'Officers' of companies, which include company directors, secretaries and some senior managers, should remain vigilant to ensure they discharge their personal obligations, including to exercise due diligence under the harmonised WHS laws. These due diligence obligations remain unchanged by the new laws. Remember, take steps to inform yourself, and if you discover a risk, take appropriate action, and document, document, document. Checking your insurance cover is also recommended.
It is now more critical than ever for on-hire employers to ensure all their staff receive adequate education and training on work health and safety matters.
Prepared by Lander & Rogers Lawyers Authors: Neil Napper, Partner, and Annika Anderson-Carter, Senior Associate