Industrial Manslaughter Introduced in Queensland

Published on: 25th August,2017   Category: Law Updates

On 22 August 2017, the Minister for Industrial Relations, Grace Grace MLA, introduced amendments to the Work Health and Safety Act 2011 to reform the Office of Workplace Health & Safety Queensland, and to  introduce a new offence of “industrial manslaughter”.

The review has been prompted by the deaths of two construction workers at Eagle Farm Racecourse in November 2016 when they were crushed by two 10 tonne concrete walls, and the deaths of four adults on the Thunder River Rapid Ride at Dreamworld in October 2016.

Following these tragedies, the Government announced a review into work health and safety laws, which was received on 3 July 2017.

The amendments insert a new provision in the Work Health and Safety Act 2011, being Section 34C, which states that a person conducting a business or undertaking commits an offence if a worker dies while carrying out work for the business or undertaking and the person’s conduct causes the death, and the person is negligent.  The maximum penalty for an individual is 20 years imprisonment, and for a body corporate 100,000 penalty units, or $10,000,000.

A further offence where a “senior officer” is involved in conduct that causes death in a workplace is also introduced with a maximum penalty of 20 years imprisonment.  Senior officer is defined to include both an executive officer of a corporation, but also the holder of a position in relation to an entity who makes, or takes part in, making decisions affecting all or a substantial part of the entity’s functions.  This could therefore apply to managers.

The amendments also provides for new powers for the Queensland Industrial Relations Commission to decide work health and safety disputes.  A work health and safety dispute is a dispute which arises out of accessing information by a health and safety representative, access to the workplace by a health and safety representative, or the cessation of work for safety reasons.

The amendment also establishes an independent Office of Work Health and Safety Prosecutor.  This is a statutory appointment of five years, and the current functions of the Regulator to conduct and institute prosecutions for Category 2 and Category 3 offences have been transferred to this office.  Category 1 and industrial manslaughter offences are still be prosecuted by the Director of Public Prosecutions.

The offence of industrial manslaughter, as introduced by this legislation, will overlap with the existing Category 1 offence regime.  Under the current regime, Category 1 offences enable prosecution of a person who, in breach of a health and safety duty, exposed an individual to whom that duty is owed to a risk of death or serious injury or illness, and the person is reckless as to that risk.

One would expect that where a fatality occurs, if the prosecution is unable to prove negligence, then it may wish to prove, in the alternative, recklessness under a Category 1 offence.

A significant question will be to see how Courts interpret causation in this context.

It is suggested that prosecutions of directors of large corporations where there has been a fatality is unlikely to occur where the director has little or no involvement in a particular incident.  Accordingly, it is suggested that the new offence of industrial manslaughter against individuals is only likely to occur where a senior employee or company director is proven to have a direct involvement in a matter which then causes a person’s death at the workplace.

The corporate industrial manslaughter charge is more likely to be prosecuted, in that the actions of the corporation as a whole will presumably need to be assessed to determine whether there is negligence which caused the death of the person.

Given the relative tariffs imposed on companies for offences, one would expect a corporation who has committed an industrial manslaughter offence, but who otherwise has a good work health and safety record, will still be liable to a penalty of well over $1,000,000 for a first offence, even considering the usual mitigating factors of a plea of guilt and cooperation with investigatory authorities.

As such, the offence introduces another strong corporate incentive to ensure that deaths do not occur in the workplace.

For further information concerning workplace health and safety, please contact Julian Brown, Catherine Ross, or Lisa Jensz of our office.

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Should You Help a Tradie to Save Money?

Published on: 1st August,2017   Category: Law Updates

Have you ever helped out a tradie in exchange for saving a few dollars on your home renovations or repairs? A recent Queensland Workplace Health & Safety prosecution demonstrates why this is a very bad idea for homeowners and tradies alike.

While you might be able to save a few dollars on your renovation or home maintenance, you could ultimately be putting yourself at risk of serious injury or death.

If you are a tradie who has got the help of a handy homeowner, you might want to think twice after reading about a very recent Workplace Health & Safety prosecution.

 

WHS Prosecution – Death following Tree Lopping Accident

In 2014 an experienced tree lopper agreed to do a job involving the trimming of eight trees in a backyard.

The tree lopper operated a successful business and for the last twenty years had not had any prior workplace health and safety incidents.

In order to cut costs the homeowner and his family offered to help with the tree lopping by doing some of the lifting and carrying.  The tree lopper often conducted his business in this way.

Unfortunately, when one of the trees was cut it struck the homeowner and he was fatally injured.

The tree lopping business was prosecuted by Workplace Health & Safety Queensland.  When making its decision about the prosecution and penalty the court noted that the use of untrained workers such as the homeowner in this case was dangerous particularly in light of the unsafe system of work used by the tree lopper and the large trees involved.  The tree lopper had cut down a section of tree that was almost 20 metres long and weighed 380kg.  The system of work in place did not prevent the tree from fatally striking the homeowner.

The business entered a plea of guilty for failing to meet its work health and safety duties.  The business was fined $80,000.00 for the breach and ordered to pay court costs of over $1,000.00.[1]

The penalty for this type of accident could have been much higher (up to $300,000.00), however, in the circumstances the court took into account their early plea of guilty and previous good health and safety record.

 

Managing Risks to Health and Safety  

Health and safety legislation in Queensland exists to make sure that workers and the general public are protected when it comes to work activities.  The law requires that hazards be identified and then eliminated so far as is possible or minimised.  When untrained members of the public engage in work activities for which they are not trained it is very difficult for a business to argue that it has satisfied its workplace health and safety duties.

A business conducting work that carries any risk of injury should take steps to manage those risks and not invite or allow customers to participate in that work in exchange for discounted services.

If you have a business, a serious incident at work can result in a prosecution by Workplace Health & Safety Queensland.  Prosecutions by Workplace Health & Safety Queensland can result in significant penalties and fines.

If you need advice on workplace health and safety prosecutions, workplace injuries, or you have a question about compensation, please contact one of our expert insurance lawyers today.


[1] https://www.worksafe.qld.gov.au/laws-and-compliance/prosecutions/court-summaries/2017/details-of-successful-prosecution-against-e202336

 

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Changes to Motorbike and Quad Bike Laws – Passengers & Helmets

Published on: 17th February,2017   Category: Law Updates

Queensland road rules have changed from 1 February 2017 to provide greater protection for quad bike passengers, motorbike passengers and utility off-road vehicle passengers.[1]

The changes are designed to protect children travelling as passengers on motorbikes, quad bikes and off-road vehicles by placing restrictions related to age and size of passengers.  Changes have also been made to the road rules for wearing motorbike helmets.

It is now against the law for a person to ride a quad bike or off-road vehicle with a passenger who is under 8 years old.  It is already against the law to have a pillion passenger on a motorbike who is under 8 years old and this law has not recently changed.

It is now against the law to carry a quad bike passenger unless the passenger can reach the footrests designed for use by a pillion passenger.

It is now against the law to carry an off-road vehicle passenger, unless the passenger can place their feet flat on the vehicle floor when seated.  The passenger will also need to be able to reach and hold the vehicle handrail when seated.

The laws now provide that a person riding a motorbike, quad bike or off-road vehicle must wear an approved motorbike helmet.  A passenger of a motorbike, quad-bike or off-road vehicle must also wear a helmet.  The rules for wearing helmets do not apply if the motorbike, quad bike or off-road vehicle is parked and the engine is not on.

Summary of the Changes

  • Children under 8 cannot ride as a passenger on a motorbike, quad bike or off-road vehicle (unless they are a passenger in a side car).
  • You cannot carry a passenger on a quad bike unless they can reach the footrests.
  • You cannot carry a passenger on an off-road vehicle unless their feet can rest flat on the floor when seated and they can reach the vehicle handrail (if one is fitted).
  • Drivers and passengers on a motorbike, quad bike or off-road vehicle must wear an approved helmet.

Changes to the laws are in response to an inquest in 2015 regarding a series of deaths involving quad bike accidents.[2]  According to the inquest, head injuries accounted for over 30% of all deaths following a quad bike accident and recommendations were made about mandatory helmet use while riding quad bikes.

There are limited circumstances in which quad bikes can be conditionally registered.  Quad bikes should not be ridden on roads unless the quad bike is conditionally registered.  If, for example, a farmer is required to ride a quad bike across a road between two farms then the quad bike should be conditionally registered.

If you have been involved in an accident involving a quad bike, motorbike or off-road utility vehicle, contact one of our experts today.

[1] Changes to the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).

[2] Inquest into nine (9) deaths caused by Quad Bike accidents (Delivered 3 August 2015).

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Queensland Laws respond to Black Lung Resurgence

Published on: 17th January,2017   Category: Law Updates

Cases of Black Lung disease (technically known as Coal Workers’ Pneumoconiosis or CWP) have risen significantly in Queensland in the past year.

Between May 2015 to December 2016 there have been around 18 confirmed cases of Black Lung disease in Queensland.[1]   Prior to May 2015 there had been no cases reported to the Department of Natural Resources and Mines for almost thirty years.[2]

Black Lung disease is caused by years of exposure to coal dust and workers in the Queensland coal mining industry are at risk.  Black Lung disease can develop into more serious and fatal respiratory conditions for which there is no cure.  It generally takes years for this condition to develop (around 10 years of exposure to coal dust).

Australia has been in the grip of a mining boom that started in around 2005.[3]  That boom is now easing, however, Queensland mines were responsible for the export of over 216 million tonnes of coal in 2014-2015.[4]

There have been concerns that Queensland coal mine worker health has been neglected.  In response to these concerns the Queensland government instigated an independent review into the Coal Mine Workers’ Health Scheme.

As a result of the review and consultations, the Queensland government has amended the Coal Mining Safety and Health Regulation 2001 (Qld).  The new regulations take effect from 1 January 2017.

Amendments to the regulations will now require increased monitoring and reporting of coal dust levels.    The changes also require coal mine workers to have chest x-rays and respiratory function tests at more regular intervals.  For example, the changes make the following mandatory as part of health assessments:-

  • Above ground coal mine workers must, at least once every 10 years, undergo respiratory function tests and chest x-rays;
  • Below ground coal mine workers must, at least once every 5 years, undergo respiratory function tests and chest x-rays; and
  • Prior to starting employment as a coal mine worker, a person must undergo respiratory function tests and chest x-rays.

There are also new provisions which require a health assessment to be done if requested by a coal mine worker who is retiring.   This only applies to workers who have worked in a coal mine for longer than three years.

If you need expert legal advice in relation to health and safety obligations, your rights at work or compensation, contact one of our expert lawyers today.

 

 


[1] https://www.business.qld.gov.au/industry/mining/safety-health/mining-safety-health/medicals/pneumoconiosis

[2] Mining Safety and Health Legislation (Coal Workers’ Pneumoconiosis and Other Matters) Amendment Regulation 2016  – Explanatory Notes.

[3] Reserve Bank of Australia Bulletin, March Quarter 2010, “Mining Booms and the Australian Economy” (Ric Battellino) (page 67).

[4] https://www.business.qld.gov.au/invest/investing-queenslands-industries/mining/resources-potential/mineral-resources/coal-resources

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