Industrial Manslaughter Introduced in Queensland
Published on:25th August,2017 Category: Law Updates
Employers Duty of Care where an Employee is Required to Travel for Work
The Supreme Court of Queensland has recently handed down a decision of Kerle v BM Alliance Coal Operations Pty Limited & Ors  QSC 304.
The Facts.Amount settled:
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.