In October the Queensland Parliament, Labor with the help of the Katter Party, passed the industrial manslaughter amendments into law and commenced on 23 October, 2017. The new laws broaden responsibility for workplace related deaths and substantially increase the potential penalty.

The new offence of industrial manslaughter is made out when a person conducting a business or undertaking (PCBU) or a senior officer of the PCBU acts or fails to act in a way that causes or substantially contributes to the death of a worker and the PCBU or senior officer is negligent in causing the death. Volunteers are excluded from potential liability, however a senior officer of an unincorporated association (other than a volunteer) may commit an offence of industrial manslaughter.

The maximum penalty for industrial manslaughter is $10 million for a company. The act or failure to act of an individual (either a PCBU or a senior officer) carries a maximum penalty of 20 years imprisonment.

The new laws do not yet apply to the mining sector. Further consultation will occur before amendments to resource industry-specific health and safety legislation are introduced to Parliament. Our view is that it is only a matter of time before they apply to mining.

The legislation does not give the option of a fine for an individual PCBU or senior officer - only imprisonment.

What do I need to know about the new laws?

What is “negligence”?

First, businesses need to understand what constitutes negligence for this offence. Generally, negligence in relation to a criminal offence is of a different standard to the civil “duty of care” standard. For criminal matters, the Courts require negligence that:
  1. falls significantly short of the standard of care a reasonable person would have exercised; and
  2. involves such a high degree of recklessness that the conduct merits criminal punishment.
 
Until there are decided Court cases on the new provision no one can say for sure what standard will be applied for WHS matters. Our view is that it will be the standard for criminal negligence - recklessness that so significantly falls short of a reasonable standard of care that the reckless conduct merits criminal punishment.

An example might be when a business directs workers to continue to work in the face of a clearly identified significant hazard and the business does not take any steps to eliminate or minimise the risk. Depending on the hazard, the risk and the consequences, such a failure to manage the hazard might be so reckless as to merit criminal punishment if a worker dies as a consequence of doing nothing about the hazard.

Who is a “Senior Officer”?

Second, the new laws a senior officer includes any person:
  1. Who is concerned with, or takes part in, the corporation's management;
  2. Irrespective of whether the person is a director or the person is called an executive officer; and
  3. Makes, or takes part in making, decisions affecting all, or a substantial part of:
    1. The business; or
    2. The person’s own functions in the business.
 
This may widen the pool of managers who are at risk of industrial manslaughter prosecution and so all managers need to be exercise vigilance in actively and effectively managing WH&S risks.
Penalties and Risk of Imprisonment

Third, the maximum penalties for breach of the industrial manslaughter laws are $10 million for a company and a senior officer can be sentenced to a term of imprisonment of up to 20 years. These more than triple the penalties that apply for category 1 "reckless" conduct that causes death under the WHS Act.

No Right to Remain Silent?

Fourth, the new laws do not include a right to remain silent in the face of possible criminal prosecution for an offence of industrial manslaughter.

Under the Queensland Criminal Code, a person accused of a crime has the right to remain silent. They do not have to answer questions about an incident or apparent crime and it is up to the prosecution to prove the offence.

The absence of a right to remain silent could be significant. When investigating an incident, a WHSQ inspector may be entitled to ask a person a question and the person must answer, even if the answer may tend to incriminate the person. The concession (in limited circumstances) is that the given answer is not admissible as evidence in a civil or criminal proceeding. Still, the answer has to be given and inspectors could then try and find another way to obtain and adduce the evidence in a hearing.

A high level of care must be exercised when answering an inspector’s questions and must only be given subject to the inspector’s powers to compel the answer, so that the protections (as far as they go) can be relied upon.

Dedicated Prosecutor

Fifth, an independent statutory office headed by a WHS Prosecutor will have responsibility for prosecutions for industrial manslaughter. The prosecutor and his/her office will be closely examining accidents involving death in a workplace for prosecutions to bring.

What should you do?

Queensland businesses should:
  1. Identify their senior officers and ensure they understand their obligations.
  2. Understand the requirements of work health and safety legislation and actively eliminate and minimise risks to health and safety so far as reasonably practicable.
  3. Continue to inculcate a work culture of eliminating and minimising risks to health and safety.
  4. Take legal advice urgently if a serious injury occurs at work. We can help you through any WHSQ investigation process that follows.
 
For advice or further information on the industrial manslaughter amendments contact Scott McSwan or Dannielle Sanderson at McKays.