13 September, 2017
Work Health and Safety and Other Legislation Amendment Bill 2017
What you need to know
The proposed offences attach to negligent conduct by a PCBU, and its officers and executive managers, causing the death of a worker.
The proposed maximum penalties are $10 million for body corporates and 20 years' imprisonment for officers and executive managers.
What you need to do
Audit and review your safety management systems and work practices to ensure that they are legally compliant, manage effectively the fatal risk hazards in your business, and are being implemented for all workers, including contractors.
Consider whether the safety culture within your business supports the systems in place to manage its fatal risk hazards.
Officers in your business should exercise due diligence to ensure that they are satisfied that the business is properly managing its fatal risk hazards.
Background
On 22 August 2017, the Queensland Government presented the Work Health and Safety and Other Legislation Amendment Bill 2017 to parliament. The Bill is now under review, and there is a real chance that it will become law.
Most importantly, the Bill proposes that new criminal offence of "Industrial Manslaughter" be inserted into the Work Health and Safety Act 2011 (Qld), the Electrical Safety Act 2002 (Qld) and the Safety in Recreational Water Activities Act 2011 (Qld) (Relevant Safety Laws).
The Bill arises from the Best Practice Review of Workplace Health and Safety Queensland – Final Report released on 3 July 2017 by former Assistant Secretary of the Australian Council of Trade Unions, Tim Lyons . The Review states that while the Terms of Reference specifically required the consideration of merit of introducing an offence of "gross negligence causing death", the Queensland Government later requested that the Review instead give consideration to "the design of the offence as opposed to the merit of its introduction". The Review then recommended the proposed offence of "negligence causing death".
The Proposed Offences
Under the Bill, a person conducting a business or undertaking (PCBU) (which includes a body corporate), or a senior officer of the PCBU, would commit a crime of Industrial Manslaughter where:
- a worker dies, either in the course of carrying out work for the business or undertaking or because the worker is injured in the course of carrying out such work and later dies. A "worker" is a person who carries out work in any capacity for the PCBU;
- the conduct of the PCBU or senior officer causes the worker's death (that is, substantially contributes to the death); and
- the PCBU or senior officer is negligent about causing the death of the worker by the conduct.
The proposed maximum penalty is $10 million for a body corporate and 20 years' imprisonment for a senior officer.
There is no option to fine a senior officer; the idea is that senior officers ought to be imprisoned instead. Nor is there any limitation period for prosecuting the proposed offences. Any Industrial Manslaughter prosecutions would be referred to the Director of Public Prosecutions.
Key Issues
The proposed offences would have very serious consequences for those who are prosecuted and convicted under them, including the potential for a significant period of imprisonment. Yet, a thorough consideration of the merit of the proposed offences, based on careful analysis and evidence, does not appear to have been undertaken. The Queensland Law Society has objected to the proposed offences and says they are unwarranted as existing laws, including the criminal offence of manslaughter, already deal with wrongs in the workplace.
The proposed offences would apply to "negligent" conduct. The meaning of criminal negligence in this context is unclear. It remains to be seen whether this would be interpreted by the Courts in practice being the negligence required for the existing criminal offence of manslaughter, being such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high degree of risk, that the conduct merits criminal punishment. This lack of clarity is highly unsatisfactory for such an important law.
The proposed offences would carry far higher maximum penalties under the Relevant Safety Laws than already exist for "reckless" conduct that causes death. The maximum "reckless" conduct, and are set at $3 million for a body corporate and $600,000 and/or 5 years' imprisonment for officers. Thus, the proposed offences would create an internal inconsistency as to penalty within the Relevant Safety Laws.
The Bill defines a "senior officer" of a body corporate broadly to be any person "who is concerned with, or takes 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". This appears to be intended to capture a broader range of managers than the definition of "officer" which is already contained within the Relevant Safety Laws for the purpose of the officer due diligence obligation.
While the proposed offences would apply to PCBUs and senior officers, they would not apply to other workers; not even those who directly cause a fatal incident and who could be equally or more blameworthy in the circumstances. It is conceivable however that such workers could be prosecuted under the existing criminal law of manslaughter.
The Bill does not provide for the proposed Industrial Manslaughter offences being inserted into Queensland's other safety laws, including those that regulate mining, petroleum and gas operations, rail and road transport. It remains to be seen whether the Queensland Government will attempt to implement the proposed offences into these other safety laws in the future.
For further information, please contact:
James Hall, Partner, Ashurst
james.hall@ashurst.com
