The Queensland government has had the offence of Industrial Manslaughter inserted into three key Acts 1) Work Health and Safety Act 2011 2) Electrical Safety Act 2002 3) Safety in Recreational Water Activities Act 2011. These changes mean that any electrical death of a worker may be prosecuted by WHS Queensland rather than by the Queensland Police. Penalties can result in 20-years imprisonment and a $10 million fine. The offence will apply to Persons Conducting a Business or Undertaking (PCBU) and to “Senior Officers”. Under the new legislation, senior officers of organisations, which include executive officers, or those individuals who perform an executive position for a PCBU, may also be held individually responsible for a worker’s death if it is found the worker died due to the senior officer’s negligent conduct. Notably, a negligent senior officer will also face up to a maximum of 20 years’ imprisonment for this offence.
SUMMARY OF KEY CHANGES
Any electrical death of a worker may be prosecuted by WHS Queensland rather than by the Queensland Police.
Penalties can result in 20-years imprisonment and a $10 million fine.
The offence will apply to Persons Conducting a Business or Undertaking (PCBU) and to “Senior Officers”.
PCBU's must now advise a list of WHS Representatives to WHS Qld.
Introducing the option for PCBUs to appoint a Workplace Health and Safety Officer (WHSO)
A mandatory requirement on PCBUs to appoint and appropriately train Health and Safety Representatives (HSR).
PCBU’s will be required to provide a list of HSR’s and copies of their provisional improvement notices to WHSQ.
The WHS Officer has been introduced into the Act, but is not a compulsory position. An employer may choose to appoint this position. In the event of a prosecution, a PCBU who has a WHS may be considered as partly demonstrating they have done all that is reasonably practicable, but it will not fully discharge the obligation.
WHS Inspectors’ decisions may be appealed to the Queensland Industrial Relations Commission by any party with an interest in the matter including Unions and WHS Representatives.
No date has been set as to when the new provisions will come into force, however the remaining amendments will commence on 1 July 2018.
MEA has spent many hours advocating on behalf of members meeting Government officials, industry partners, crossbench members of parliament and writing submissions. Unfortunately, on this occasion the vote fell short by 3 votes. These changes should be seen as a very serious development for Electrical Contractors. MEA has a number of key concerns, including:
The charges will not be investigated by the Police but be undertaken by the WHS Inspectors in combination with a new statutory prosecutorial arm of WHS Queensland. These changes suggest that employers can expect an increase in hard compliance investigation penalties and prosecutions to accompany the manslaughter charges.
No other jurisdiction in Australia has created this offence outside the criminal code.
“Senior Officers” is not a well-defined term. On our assessment, it will be interpreted broadly and include multiple persons who may be engaged in the management of a business.
Recent findings against employers who were fined as an interested or contributing party in incidents, noted that they failed to provide a safety management system. The clear message is that things are tightening up for employers. Every reasonable step must be taken to ensure a safe workplace and the safe conduct of workers in that workplace, and it must be demonstrable.
Our Workplace Relations and Safety teams can assist you to understand what implications these amendments have on your organisation and what changes you may need to make in order to comply with the new laws. Phone: 1300 889 198