An offence for industrial manslaughter is likely to come into force in Queensland
On the back of a review prompted by the fatalities at Dreamworld and on an Eagle Farm worksite in 2016, a report by former ACTU assistant secretary Tim Lyons was presented to the Queensland government in July 2017, making 58 recommendations in relation to a number of work health and safety matters, including amendments to the Work Health and Safety Act 2011 (Qld) (the Act).
As a result of these recommendations, the Work Health and Safety and Other Legislation Amendment Bill 2017 (the Bill) was introduced into Queensland parliament on 22 August 2017.
Most importantly the Bill creates a new offence of ‘Industrial Manslaughter’ for both the Work Health and Safety Act 2011 and the Electrical Safety Act 2002. This includes an offence for both a ‘senior officer’ and an ’employer’ conducting a business or undertaking where there was negligent conduct that caused the death of a worker. The maximum penalty for an individual will be 20 years imprisonment and the maximum penalty for a body corporate will be $10 million. The onus of proof will be the same as for criminal negligence. These penalties are substantially greater that the current harmonised WHS maximum penalties for a category 1 (reckless conduct) offence of $3 million and five years’ jail.
The Bill expands the exclusions to when an enforceable undertaking is available, making an EA unavailable where the alleged offence involves a fatality.
The Bill also provides for the establishment of a statutory authority for prosecutions of work health and safety and hands an expanded jurisdiction to the Queensland Industrial Relations Commission to hear and determine work health and safety disputes.
Under the amendments, WHSQ inspectors will also be able to make contemporaneous determinations on certain WHS right of entry disputes.
In a major change from the role of WHS Codes of Practice under the harmonised legislative regime, the Bill provides that safety measures referred to in the various WHS Codes are mandatory unless the PCBU/ duty holder can demonstrate equal or better measures being in place (with the associated onus of proof considerations).
The Bill also resurrects the role of a Work Health and Safety Officer (WHSO) within a PCBU. Whilst the appointment of a WHSO will not be mandatory, the engagement of one will be a consideration as to whether a PCBU has appropriately managed its workplace WHS risks.
There are new reporting requirements under the Bill, requiring PCBUs to self-report internal provisional improvement notices issued by Health and Safety Representatives (HSR’s). HSRs also have new mandatory training requirements.
The Bill does not address one review recommendation however that legislation be amended to prohibit PCBUs from entering insurance contracts to cover penalties and fines issued in relation to work health and safety and that contravening this prohibition should be an offence. Given that most insurers do not currently offer such cover, nor would offer it, this is an understandable omission.
The Lyons review also raised the possibility of Queensland advocating for the reintroduction of a reverse onus of proof in safety prosecutions at the 2018 COAG review of national WHS legislation.
The Bill has been referred to the Finance and Administration Committee. Given the highly publicised fatalities it is expected to pass parliament.
At Macpherson Kelley, we regularly advise our clients on issues of Work Health and Safety compliance. If you would like further information, please contact Stephen Hughes.
This article was written by Nicola Skeggs, Lawyer – Workplace Relations.