Industrial Manslaughter New WHS Offence in Queensland
Under the harmonised WHS system, all States and Territories (except Victoria) have a Work Health & Safety Act based on the model WHS laws. The model WHS Act has 3 categories of WHS offences – the Category I offence (reckless conduct) is the most serious offence.
On the 23rd of October 2017, a new category of offence called industrial manslaughter became law in Queensland in their amended WHS Act. As of 2018 the penalties for this offence are at least 3 times higher than the penalties for a Category 1 reckless conduct offence in the NSW WHS Act.
What is an Industrial Manslaughter Offence?
Under the newly amended Queensland WHS Act, a PCBU (organisation) or a "Senior Officer" of the PCBU can be prosecuted for industrial manslaughter offence if:
- a worker dies, or is injured and later dies, while carrying out work for the PCBU
- the conduct of the PCBU or Senior Officer substantially contributes to the death of the worker and their conduct was negligent.
Who are "Senior Officers?"
Although not used in any other jurisdiction, the meaning of the term "Senior Officer" under QLD WHS law may apply not only to directors and CEOs of a company but may include any member of staff who is “concerned with or takes part in the corporation’s management”. The implication of this is that the term may extend to senior management and possibly even line managers, even though senior managers and line managers do not have any "due diligence" obligations under the WHS Act, which otherwise apply only to Officers of a PCBU, as per section 27 of the WHS Act. More information will need to be obtained to clarify this.
What are the Maximum Penalties for Industrial Manslaughter?
The maximum penalties for Industrial Manslaughter in Queensland under their WHS Act are 20 years imprisonment for an individual and a $10 million fine for a body corporate.
The penalties for a Category 1 Offence (reckless conduct) in the QLD WHS Act are: a maximum penalty of 5 years imprisonment for individuals and fine of up to $3 million for corporations, $600,000 for Officers, and $300,000 for workers.
“We promised to get industrial manslaughter on the books in Queensland, and to send out a strong message that if you cost someone their life, you will pay," the Queensland Industrial Relations Minister Ms Grace said. “Importantly, companies won’t be able to hide behind elaborate corporate structures to evade their responsibilities.”
How might this impact on other States and Territories?
Per the Corporations Act 2001, if your company does business in Queensland, irrespective of where your head office is, your QLD operations are answerable to the QLD Regulator whose job is to enforce State Laws.
The States and Territories who signed up for harmonised WHS legislation will meet in 2018 for a national review of the model WHS legislation. The Queensland Government has indicated its intent to recommend that other States and Territories also add industrial manslaughter to their respective WHS legislation.
The ACT already has a criminal offence called industrial manslaughter and has had it in force since 2003.
In recent times there has been what appears to be a rise in prosecutions for manslaughter in NSW and Queensland under Criminal law extending to serious WHS incidents. Michael Tooma and Lucy Bochenek from Clyde & Co Lawyers have written an article about this: Rise in Manslaughter and Serious Criminal Charges Arising out of Workplace Safety Incidents)
What You Can Do About This
The solution at face value is very simple: have and maintain a rock-solid, robust WHS Management system. Every business is required to have a WHS management system as per Section 19 of the WHS Act. This is where it all starts. Business owners and company directors have the ultimate responsibility in this.
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