05 June 2018
The Dreamworld incident involved the death of four patrons on the 'Thunder River Rapids' ride when their raft collided with another raft near a large conveyor belt at the end of the ride. Less than a month prior to this catastrophic event, two construction workers were also killed at Brisbane’s Eagle Farm racecourse when two concrete walls “failed” and simultaneously collapsed on top of each other due to poor installation procedures.
In 2017, 187 Australians were killed at work, up from 182 workers in 2016. As of 11 May, there have been 46 Australian workers killed at work in 2018. These figures are based on Safe Work Australia’s annual Work-related Traumatic Injury Fatalities Report, which had provided information relating to work-related fatalities since 2003.
In response to the fatal Dreamworld and Eagle Farm incidents, the Queensland Government proposed the Work Health and Safety and Other Legislation Amendment Bill 2017 (Cth) in August 2017. The Bill sought to introduce a new criminal offence, “industrial manslaughter”, into the Work Health and Safety Act 2011 (Qld) (WHS Act). The introduction of this new offence was recommended by the 2017 independent report, “Best Practice Review of Workplace Health and Safety in Queensland”, which was also conducted as a result of the Dreamworld and Eagle Farm accidents.
This Bill passed on 12 October 2017, and the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) (the Amendment Act) was assented to on 23 October 2017. On assent, the Amendment Act introduced a number of key amendments to the WHS Act. The Amendment Act established the requirement for a person conducting a business or undertaking (PCBU) to provide the regulator with a list of Health and Safety Representatives and deputy Health and Safety Representatives for each work group. The assent of the Amendment Act also prohibited the acceptance of enforceable undertakings for contraventions or alleged contraventions of the WHS Act that involve a fatality. The offence of “industrial manslaughter” was inserted into the WHS Act, as recommended by the 2017 independent report. In order to allow for the more timely review of codes, the Amendment Act also provided that codes of practice will expire five years after they have been approved.
A number of other provisions of the Amendment Act commenced upon its proclamation on 13 November 2017. For example, the jurisdiction of the Queensland Industrial Relations Commission (QIRC) was expanded to hear and determine disputes relating to work health and safety issues, cease work matters, request for assistance by Health and Safety Representatives, and the provision of information to Health and Safety Representatives. Further, disputes will not be able to be lodged with the QRIC until 24 hours after an inspector has been requested to assist with resolving a dispute and the dispute remains unresolved. An independent statutory office for work health and safety prosecutions was also established on proclamation of the Amendment Act. The office is headed by a WHS Prosecutor appointed by the Governor-in-Council for a five-year renewable term. On proclamation, the Amendment Act also enabled inspectors to make a determination about whether the WHS entry permit holder has a valid right of entry, or has complied with the notice requirements of sections 119 or 122 of the WHS Act.
There are several aspects of the Amendment Act which are yet to commence; this will occur on 1 July 2018. One such provision that will commence in July this year is the restoration of the status of codes of practice as they existed under the repealed Workplace Health and Safety Act 1995 (Qld). Training for Health and Safety Representatives will also be mandated within six months of being elected to the role, with refresher training to be undertaken at three-yearly intervals.
Another feature of the Amendment Act that will soon commence is the ability of a PCBU to appoint a Work Health and Safety Officer (WHSO). The appointment of a WHSO will be permissible as evidence that a PCBU has taken action to mitigate health and safety risks. Inspector investigation powers under section 171 of the WHS Act will also be clarified, to ensure that these powers are not inappropriately limited by a legal technicality.
The implementation of “industrial manslaughter” provisions in the WHS Act makes it an offence for a PCBU or senior officer to negligently cause the death of a worker. A senior officer is defined as an executive officer of a corporation or for a non-corporation, being the holder of an executive position who makes, or takes part in making, decisions affecting all, or a substantial part, of a PCBU’s functions. In order to determine whether you are a senior officer for the purpose of industrial manslaughter, you should have regard to your position in the organisation and involvement in decisions which affect the organisation, as well as your ability to influence how resources are used and what procedures are necessary.
If the offence of industrial manslaughter is proven to the criminal standard, the PCBU or senior officer could face a penalty of up to $10 million AUD (if a company), or up to 20 years imprisonment (if an individual). Now, more than ever, risk prevention and response to injury or fatalities are therefore crucial in abstaining from liability in such events.
There are three categories of reckless conduct caught by the WHS Act. Section 31 defines the first category of reckless conduct as occurring when a person has a WHS duty and without reasonable care, they engage in conduct that exposes an individual to whom that duty is owed, to a risk of death of serious injury or illness. The person must also have been reckless as to the risk of death of serious injury or illness. As an individual PCBU or officer of a PCBU, a maximum penalty of $600,000 or five years imprisonment applies. As a worker, the maximum penalty is $300,000 or five years imprisonment. Corporations have significantly higher penalties than individuals; they may be liable up to $3 million.
Section 32, the second category of recklessness, is invoked for a failure to comply with a WHS duty. Section 32 is satisfied when a person with a WHS duty fails to comply with that duty, and that failure exposes an individual to a risk of death or serious injury or illness. The maximum penalty for a breach of section 32 is less than that of section 31. An individual worker may be liable up to $150,000 and an individual PCBU or officer up to $300,000. The maximum penalty for a corporation is $1.5 million.
An even lower threshold is necessary to satisfy section 33, the third category of recklessness within the WHS Act. Section 33 will be breached if a person with a WHS duty fails to comply with that duty. Individual workers who are caught by section 33 will be liable up to $50,000. The maximum penalty for individual PCBU or officers is $100,000, and $500,000 for corporations.
Author: Rachel Drew
Rachel Drew, Partner
T: +61 7 3135 0617
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
Charles Power, Partner
T: +61 3 9321 9942
Benjamin Marshall, Partner
T: +61 3 9321 9864
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.