Substantial amendments to Queensland’s mirror Work Health and Safety Act have taken effect, making the state’s work health and safety (WHS) laws less consistent with the model WHS laws.
The Work Health and Safety and Other Legislation Amendment Act 2017 (the Amendment Act) received Royal Assent on 23 October 2017. Its successful passage through the state parliament has been controversial, as the industrial manslaughter laws introduced by the Amendment Act go beyond the model WHS laws and potentially defeat the goal of uniformity across state and territory WHS laws.
The industrial manslaughter offences are complicated by the fact that they introduce new terminology and penalties.
What are the new industrial manslaughter offences?
The industrial manslaughter offence provisions appear under a new Pt 2A of the Work Health and Safety Act 2011 (Qld).
Under s 34C, a person conducting a business or undertaking (PCBU) commits an offence if the PCBU’s conduct causes the death of a worker and the PCBU is negligent about causing the death of the worker through their conduct.
Under s 34D, a senior officer commits an offence if the senior officer’s conduct causes the death of a worker and the senior officer is negligent about causing the death of the worker through their conduct.
A worker’s death would have been caused by the conduct of the PCBU or senior officer if the conduct substantially contributes to the death.
Similar offences have been included in the Electrical Safety Act 2002 (Qld) and the Safety in Recreational Water Activities Act 2011 (Qld).
When did the new offences become law?
Part 2A, which contains the new industrial manslaughter offence provisions, commenced on 23 October 2017 when the Amendment Act received Royal Assent.
Who is subject to the industrial manslaughter offence?
Under the new Pt 2A, the industrial manslaughter offences apply to PCBUs and senior officers. Section 34C applies to PCBUs, while s 34D applies to senior officers.
Volunteers cannot be convicted of this crime.
Who is a senior officer?
In a corporation, a senior officer is someone who is an executive officer of the company.
An executive officer includes a person who is concerned with, or takes part in, the management of the corporation.
Such a person need not have the title of an executive officer. The person also does not have to be a director of the company.
If the PCBU is not a corporation, a senior officer is the holder of an executive position who makes or participates in making decisions affecting all or a substantial part of the person’s functions.
Does a senior officer has the same meaning as an officer?
Interestingly, the concept of a senior officer under the new Pt 2A is different from the concept of an officer under Part 2 of the Act.
Under Part 2 s 27 of the Act, an officer is required to exercise due diligence to ensure the PCBU complies with its WHS duties. For the purposes of s 27, an officer of a corporation is defined by reference to s 9 of the Corporations Act 2001 (Cth).
An officer under the Corporations Act includes a director or secretary of a company, as well as a person who:
- “• makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation;
- • who has the capacity to affect significantly the corporation’s financial standing; or
- • in accordance with whose instructions or wishes the directors of the corporation are accustomed to act”.
Thus, an officer is someone who affects or influences the strategic direction of the company.
A senior officer, on the other hand, merely needs to be responsible for or involved in the management of the company.
Somewhat ironically, therefore, an “officer” generally refers to higher-level management while a “senior officer” under Pt 2A appears to include anyone with management responsibilities.
In other words, a person may not be an officer subject to the due diligence requirements of the Act, but they may still be a senior officer capable of being charged with the industrial manslaughter offence.
What are the consequences of being convicted of the industrial manslaughter offences?
The penalties for the new industrial manslaughter offences are higher than the maximum penalties stipulated for Category 1 offences.
Individuals (as PCBUs or senior officers) charged with the industrial manslaughter offences will face imprisonment of up to 20 years.
A corporate PCBU charged with an industrial manslaughter offence will face a penalty of up to 100,000 penalty units ($10m).
In contrast, a corporate PCBU that commits a Category 1 offence faces a penalty of up to 30,000 penalty units ($3m). Individual PCBUs and officers that commit a Category 1 offence face imprisonment of up to five years or 6,000 penalty units ($600,000).
Will prosecutions for industrial manslaughter offences be subject to limitation periods?
Prosecutions for industrial manslaughter offences have been excluded from the operation of s 232, which prescribes the limitation period for WHS offences.
This means that limitation periods will not apply to prosecutions for the industrial manslaughter offences.