Local government officers and senior executives are being increasingly targeted in Work Health and Safety (WHS) prosecutions, prompting warnings for organisations to apply greater diligence.
McCullough Robertson Lawyers’ (McR) latest local government publication, The Local Law says the strengthening of industrial manslaughter laws in recent years does not alter the scope of duties or compliance obligations under the Work Health and Safety Act 2011 (Qld) (QLD WHS Act).
“However, it will likely increase exposure to penalties where charges are laid,” an article in the publication says.
“To date, there has only been one successful industrial manslaughter prosecution of an individual in Queensland – the sole director of an electrical motor rewinds business in Gympie.
“However, our experience is that the independent WHS Prosecutor is increasingly targeting individuals when prosecuting WHS offences.”
The McR article, authored by Partner Cameron Dean and Employment Relations and Safety Legal Adviser Karl Christensen, deals principally with the risks to officers, councillors and senior executives in local government.
Late last year, the reach of state industrial manslaughter laws to local government CEOs became a discussion issue following the death of a volunteer firefighter on Western Australia’s south coast.
Under Western Australia’s Work Health and Safety Act 2020 (WA), which came into effect in 2022, officers face a maximum penalty of $5 million and 20 years imprisonment if found guilty of the industrial manslaughter offence.
Queensland introduced new industrial manslaughter laws in 2017 within the QLD WHS Act as a response to a double fatality at an Eagle Farm Racecourse construction site in October 2016 and the quadruple fatality at Dreamworld a few weeks later.
The McR article said the industrial manslaughter laws applied to local government CEOs in Queensland as a “senior officer” of the organisation.
“The breadth of that term’s definition is such that it can also extend to others in senior management positions and, potentially, to Councillors,” the article said.
“In the local government context, a senior officer is a person who makes, or takes part in making decisions affecting all, or a substantial part, of the organisation’s functions.”
An industrial manslaughter prosecution could be brought against a senior officer where:
- a worker dies, or is injured and later dies, in the course of carrying out work for the business or undertaking;
- the senior officer’s conduct causes the death of the worker; and
- the senior officer, by their conduct, is negligent about causing the death of the worker.
The maximum penalty is 20 years imprisonment. Unlike in Western Australia, there is no monetary penalty provided as an alternative in Queensland.
The authors said that, although a local government CEO could not “be everywhere or know everything about the operations of the organisation at any given time” there were practical steps that could be taken to demonstrate WHS due diligence.
These included the following.
- Ensure WHS is an agenda item at executive meetings and that it is meaningfully discussed.
- Where a WHS issue is raised, especially where it is an issue that involves risks of death or serious injury, ensure that a plan is documented to address it and follow up to confirm it has been completed.
- Maintain regular contact with individuals whose roles are critical for managing WHS (e.g. operations managers, asset managers, WHS managers).
- Receive periodic reports (e.g. monthly or quarterly) on how effectively a sample of key WHS risks are being managed across the organisation.
- Attend different workplaces from time to time and engage with staff on WHS matters.
- Ensure there are no unreasonable budgetary constraints for managing WHS issues.
To learn more, contact McCullough Robertson’s Employment Relations and Safety team
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
