Proctor : December 2017
28 PROCTOR | December 2017 Industrial manslaughter offence: new era for WHS Queensland breaks away from harmonised legislation On 12 October 2017, the Queensland Government passed the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) (the Act). Its introduction to parliament was preceded by mounting public pressure to crack down on the regulation of workplace health and safety (WHS) across the state, following two fatal incidents at Dreamworld and Eagle Farm in 2016. The Government-commissioned report, “A Best Practice Review of Workplace Health and Safety Queensland” (the Report), conducted by independent reviewer Tim Lyons, made 58 recommendations to improve WHS across the state – many of these recommendations were addressed in the drafting of the legislation. The Act introduces a number of significant provisions set to reshape WHS laws, most notably an “industrial manslaughter” offence – arguably, the biggest change since harmonisation. The offence, which was originally to come into effect from 1 July 2018, came into force on 23 October 2017 when the Act was assented to. Industrial manslaughter offence A person conducting a business or undertaking (PCBU), or a senior officer, may be found guilty of industrial manslaughter where a worker dies, or is injured in the course of carrying out work and later dies, and: • the officer or PCBU’s conduct substantially contributed to the death of the worker, and • they were negligent about causing the death of the worker by their conduct. The maximum penalty for an individual found to have committed the offence will be 20 years’ imprisonment and body corporates could be fined up to $10 million. Minister for Employment and Industrial Relations, The Honourable Grace Grace, previously indicated the offence is aimed at preventing corporate avoidance of WHS obligations. In talking about the Bill, the Minister said that “...affected families...can take heart that individuals or companies responsible will be held accountable under our laws,” which she described as a “deterrent to employers tempted to cut corners when it comes to safety in the workplace”. 1 Operation of the offence The omission of descriptors such as “gross” or “reckless” with respect to the phrasing of “negligence” is notable, and may leave room for debate as to what threshold is required to establish negligence under the industrial manslaughter offence. The explanatory notes do, however, state that the existing standard of proof in Queensland for criminal negligence will be applied. Adopting this guidance, the common law criminal standard of proof of “beyond a reasonable doubt”, rather than the civil benchmark of “on the balance of probabilities”, will apply. The causative element triggering contravention of the offence is that a PCBU or senior officer “substantially contributes” to the worker’s death. From a criminal perspective it has been held that “there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the “main” or “most substantial cause of death”. However, it is clear that criminal liability will not attach unless the act was a “significant” or “substantial” cause of death.2 From this reasoning, “substantially contributes” may not necessarily be taken to mean that the conduct had to be a dominant or primary reason causing the fatality. Before its passing, the Act was also amended to clarify that s 23 of the Criminal Code 1899 (Qld) will not apply, essentially removing the accident defence. Finally, the offence is expanded to encompass an injury later resulting in death. This poses an unanswered temporal limitation question. It is possible the offence may capture workplace conduct that leads to a death many years later. For example, if a worker is negligently exposed to a substance in the workplace, which is found to substantially contribute to their death 20 years later, a PCBU or senior officer could theoretically be prosecuted under the offence. Barring prosecutorial discretion, there is no statute of limitations provision to prevent an industrial manslaughter charge being laid. Other changes under the Act Although the industrial manslaughter offence will likely be the most significant reform under the legislation, the Act introduces some other significant changes that will affect the current WHS framework. Transfer of jurisdiction for reviewable decisions The jurisdiction for reviewable decisions3 will be transferred from the Queensland Civil and Administrative Tribunal (QCAT) to the Queensland Industrial Relations Commission (QIRC). The Report recommended the QIRC’s jurisdiction be significantly expanded, to reflect its place as a specialised forum for workplace disputes within the state. Under the Act, the QIRC is empowered to hear disputes about matters such as the provision of information to a health and safety representative (HSR), requests by HSRs for assistance, a WHS grievance resolution process or a cease work issue. HSRs The Act introduces various amendments to the functions and powers of HSRs. Among these changes are reintroducing the requirement for a PCBU to compile a list of HSRs and deputy HSRs to be provided to the regulator, and imposing mandatory uptake and refresher training for HSRs to continually improve WHS education levels in line with best practice. The Act also requires PCBUs to provide a copy of “Provisional Improvement Notices” issued by HSRs to the Regulator.