In October 2016, the Queensland Government declared an independent Best Practice Review of Work Health and Safety in Queensland to assess the State's work health and safety laws. This was in response to the deaths of four visitors to Dreamworld and two deaths of workers at Eagle Farm Racecourse redevelopment. These tragic accidents highlighted the need to reform Queensland's WHS laws.
On 3 July 2017, the final report for the Review was provided to the Queensland Government. This report made 58 recommendations to amend the Work Health and Safety Act 2011 (Qld) (WHS Act), of which the most significant was to introduce an offence of industrial manslaughter. The Queensland Parliament passed the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) to introduce the offence of industrial manslaughter as well as increase powers and responsibilities under the WHS Act. The law took effect on 23 October.
Under the amendments to the WHS Act, the offence of industrial manslaughter occurs when a worker:
- dies in the course of carrying out work for the business or undertaking; or
- is injured in the course of carrying out work for the business or undertaking and later dies, and
- the person conducting a business or undertaking (PCBU) or senior officer’s conduct (either by act or omission) causes the death of the worker; or
- the PCBU or senior officer was negligent about causing the death of the worker by the conduct.
A person will be found negligent where their conduct so far departs from the standard of care expected to avoid danger to life, health and safety, and the conduct substantially contributed to the death.
The maximum penalty under the new offence is up to 20 years imprisonment for individuals and up to a maximum fine of $10 million for corporations. The individuals in this case are the "directors and senior officers" of the organisation, who may also be held individually responsible for a worker’s death if it is found the worker died due to the officer’s negligent conduct. Under these industrial manslaughter provisions, volunteers (usually members of school councils or governing boards) are exempted from being prosecuted for industrial manslaughter. This leaves the paid "senior officers" to be subject to a potential prison sentence.
A ‘senior officer’ is distinct from an ‘officer’ to whom the current due diligence obligations under the WHS Act apply. A senior officer is defined more broadly as any person who is concerned with, or takes part in, the corporation’s management, regardless of whether the person is a director or the person’s position is given the name of executive officer. For schools, the ''senior officer" is likely to be at least the principal, and potentially other senior decision-makers in the school, such as a business manager/bursar, and deputy principals or campus heads. This will differ from school to school, based on the facts.
For information on the application of the general due diligence requirements for "officers" under the WHS Act (in all harmonised states/territories) please refer to this whitepaper: Model Australian Work Health & Safety Laws.
Previously the maximum penalty under the WHS Act was for recklessly causing a death where the PCBU was liable for a $3 million fine, and an individual for 5 years imprisonment.
This new offence sends a message to all employers in Queensland about the community’s expectations for safety in the workplace and that companies, and the senior officers working for them, must do everything necessary to provide a safe workplace for workers. Queensland’s Industrial Relations Minister, Grace Grace said that “if you cost someone their life you will pay.”
How do these changes affect schools?
As most schools would be considered PCBUs and have "senior officers" managing the operation of the school, a death of a "worker" while engaging in work activities or on school grounds could potentially result in charges relating to industrial manslaughter. To prevent such a tragedy from occurring school can regularly inspect the school for many potential hazards that may result in an injury or death and review measure for dealing with any potential workplace hazard.
Previously in School Governance, we reported about how the Ipswich Magistrates Court fined a chair-o-plane operator (a contractor hired by the school) $80,000 after an untrained casual employee was fatally crushed by a component of the ride, while at a government school event. If these events took place today, the industrial manslaughter charges could apply to the operator of the amusement ride (not the school).
Industrial manslaughter charges in Australia
Queensland is not the first Australian state or territory to introduce industrial manslaughter charges. In the ACT, the Crimes Act 1900 (ACT) makes it an offence for an employer or a senior officer of a company to cause the death of a worker. In the ACT, industrial manslaughter is committed when a worker of the employer:
- dies in the course of the employment by, or providing service to, or in relation to, or in relation to, the employer; or
- is injured in the course of employment by, or providing services to, or in relation to, the employer later dies, and
- the employer's or senior officer’s reckless or negligent conduct causes the death of the worker the senior officer or employer.
Other states and territories do not have industrial manslaughter provisions. Attempts to introduce industrial manslaughter provisions in NSW and Victoria have been unsuccessful to date. However, there are provisions in the WHS/OHS legislation for employers not to recklessly endanger persons (not just workers) at workplaces. In NSW, SA and NT the maximum penalty is $3 million, or 5 years imprisonment. In Victoria, under the Occupational Health and Safety Act 2004 (Vic), an employer must ensure they do not recklessly endanger person at a workplace with a maximum penalty of five years’ imprisonment, a fine not exceeding $285,425.00, or both. Western Australia has just introduced bills into its parliament to amend the OSH Act to increase the maximum fine for gross negligence to nearly $3 million, which will bring it into line with the rest of Australia.
Recent Eagle Farm charges laid
Four people and a construction company are due to face the Brisbane Magistrate’s Court in January 2018 over the alleged involvement in the deaths of two workers who were crushed by a 14 tonne concrete panel at Brisbane’s Eagle Farm Racecourse in October 2016. The Office of the Director of Public Prosecutions that the employees, a sub-contractor and the construction company did not have sufficient controls in place, did not follow safe work methods, failed to keep up-to-date with the current safe work methods and understand the risks associated with construction – especially regarding the construction of foul water tanks.
The man in control of the construction site is facing manslaughter charges. The charges have not been brought under the WHS Act but instead by Queensland Police Service under the Criminal Code 1899 (Qld). While the elements of a manslaughter offence under the Criminal Code 1899 (Qld) are essentially the same as those for the new industrial manslaughter offence, if found guilty, the accused may face five years imprisonment or a fine of $600,000, which is substantially less than the sanctions under the industrial manslaughter amendments.
Significance for schools
The addition of the industrial manslaughter offence to workplace safety laws is a further prompt for a school to review the effectiveness of its WHS processes and procedures, including the identification of hazards, and implementing all reasonably practicable control measures (the wording is from the legislation) that may cause a risk to students, staff and anyone else who may be affected by the school's activities.