On 23 October 2017, industrial manslaughter provisions in the Work Health and Safety Act 2011 (Qld) (WHS Act) commenced. The provisions created two new criminal offences of industrial manslaughter for a person conducting a business or undertaking, or a senior officer, to negligently cause the death of a worker.
The new provisions are the Queensland Government’s response to the independent Best Practice Review of Workplace Health and Safety in Queensland which was commissioned in response to the death of four visitors to the Dreamworld theme park on the Gold Coast.
Identical provisions have also been inserted into the Electrical Safety Act 2002 (Qld) and the Safety in Recreational Water Activities Act 2011 (Qld). The new laws are relevant to all employers, but particularly those in high risk industries such as construction, transport, and manufacturing.
The provisions make it an offence for a person conducting a business or undertaking (PCBU), or a senior officer, to negligently cause the death of a worker, if:
For the purposes of the WHS Act, a worker includes (among other classes of workers) an employee, a contractor or subcontractor, and an employee of a contractor or subcontractor.
The new offence strengthens existing penalties and offences under the WHS Act. In particular, the industrial manslaughter offence carries higher maximum penalties than the category one offence for recklessly exposing an individual to a risk of serious illness or injury or death, which previously was the most serious contravention of the WHS Act a PCBU could commit.
Negligence is easier to prove than recklessness as it is a broader test and does not consider the subjective state of mind of the defendant. However, the WHS Act provides that industrial manslaughter will be a criminal offence provision, meaning the relevant standard for a successful prosecution is “beyond reasonable doubt”. This is a harder test to satisfy at law as evidence is required that proves a person’s conduct departs so far from the standard of care expected to avoid danger to life, health and safety, and substantially contributes to the death.
A PCBU found guilty of industrial manslaughter may be liable for a fine of up to $10 million.
The new offences also apply to senior officers of a PCBU who may be individually liable for a term of up to 20 years imprisonment.
Senior officers are those who are concerned with, or take part in the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.
The use of the term ‘senior officer’ for the industrial manslaughter offence is intended to capture individuals of the highest levels in an organisation (those who can create and influence safety management and culture at their workplace), even if they don’t have the final say on safety matters. The rationale for capturing these higher level officers is to ensure health and safety is managed as a cultural priority within organisations and to guarantee that safety standards are managed and supported from the top-down.
Examples of senior officers may include a director or secretary of a corporation, chief executive officers, chief financial officers, general counsel, site or project managers, or general managers.
Lessons for employers
The new offences of industrial manslaughter do not change an employer’s primary duty under the WHS Act to ensure, as far as reasonably practicable, the health and safety of their workers. Nor does it alter an ‘officer’s’ duty to exercise due diligence. What has changed is the addition of new offences and penalties for criminal negligence causing death.
Directors and officers must continue to exercise due diligence to ensure compliance with health and safety obligations, including taking reasonable steps to:
While the new laws do not impose additional obligations on employers, it is timely for employers to review their safety management systems to ensure control measures are in place to eliminate or minimise the risks of fatal hazards.
Queensland companies should also identify their senior officers and take steps to ensure they understand their obligations in light of the new criminal offences. Senior officers should ensure that they are appropriately insured and understand their safety obligations.
We regularly assist clients across all industries in reviewing their workplace policies, procedures and project contracts to ensure they are compliant with the WHS Act. If you would like us to review your current arrangements or precedent contracts, please contact us.
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