Queensland Law Society

Queensland industrial manslaughter laws – countdown to 1 July

Under changes commencing 1 July 2018, a person conducting a business or undertaking (now including senior officers) must either comply with an approved code of practice under the Work Health and Safety Act 2011 (WHS Act) or demonstrate that equal to or better measures are taken. This departs from the current provisions which allow a code of practice to be admissible in court proceedings as evidence of known hazards and to assist the court in determining what was reasonably practicable in the circumstances.

The Society is a strong advocate for effective work health and safety laws that promote safety and prevent workplace injuries. We have repeatedly called for increased funding and resources to be directed to Workplace Health and Safety Queensland (WHSQ) so that further engagement and training can be undertaken and so that investigations and prosecutions can be increased, where necessary.

Queensland Parliament introduced industrial manslaughter provisions into the WHS Act, Electrical Safety Act 2002 (ES Act), and Safety in Recreational Water Activities Act 2011 (SRWA Act) in October 2017.

The new offence captures a person conducting a business or undertaking (PCBU), or a senior officer, who is found to have negligently caused the death of a worker in Queensland.

The offence applies if:

  • a worker dies, or is injured and later dies, in the course of carrying out work for the business or undertaking (including during a work break), and
  • the PCBU’s, or senior officer’s, conduct cause the death of the worker (ie, the action or inaction of the PCBU, or senior officer, substantially contributes to the death), and
  • the PCBU, or senior officer, is negligent about causing the death of the worker (ie, the person’s action or inaction departs so far from the standard of care required).

A maximum penalty of 20 years’ imprisonment for an individual, or $10 million for a body corporate, applies.

Significantly the new offence now captures senior officers being individuals at the highest levels of the organisation, who create or influence safety management and culture. These include an executive officer of a corporation or, in a non-corporation, someone holding an executive position or taking part in making decisions affecting all, or a substantial part, of a business function.

A senior officer may include you

Senior officers can include a director or secretary of a corporation, chief executive officer, chief financial officer or chief operations officer, general counsel, general manager, officeholder in an unincorporated association (ie a club president).

If you have any ability to take part in decisions which affect the company, including how money is spent, deciding the strategic direction, influencing how resources are used, or have oversight of high-level general managers – you may also be a senior officer.

However, if you only provide advice for the consideration of a decision maker or are only a line manager, you will likely not be a senior officer as you do not make key decisions on how the business is managed.

What is the standard of care required?

The existing standard for criminal negligence in Queensland applies to the industrial manslaughter offences. This means that a PCBU or senior officer will be found negligent when their conduct departs from the standard of care expected to avoid danger to life, health and safety, and the conduct substantially contributed to the fatality. This may include any unwritten rules or conduct authorising non-compliance, or which undermines a culture of compliance within the workplace.

Other key learnings

  • The new offence does not yet apply to the mining industry.
  • Volunteers are largely excluded.
  • The new offence only applies in the event of a fatality.
  • The offence requires a criminal standard of negligence.
  • The traditional ‘accident’ defence has been excluded.
  • A fatality during a work break is covered by the new offence.

Action

With less than two weeks until this offence commences on 1 July, it is important to identify and educate your senior officers to ensure they understand their obligations.