It has now been over five years since the introduction of harmonised WHS laws to most States and Territories in Australia. As planned, there will be a review of the model WHS laws in 2018.
The review is being led by Marie Boland, a former Executive Director of SafeWork SA. The scope of the review includes considering whether the model WHS laws are achieving their objectives, whether they have resulted in any unintended consequences and key concepts that were new or significantly different for most jurisdictions, such as the duties framework, penalty and enforcement measures.
Employers should expect a public consultation process to commence this year and may wish to make submissions as part of the consultation process.
The terms of reference can be found here.
Employers should also watch developments in industrial manslaughter laws as part of the National Review of Model WHS Laws.
Industrial manslaughter laws introduced in Queensland
New industrial manslaughter offences commenced in Queensland in October 2017, as part of a suite of amendments which were made to the Work Health and Safety Act 2011 (Qld). While other states have not indicated if they intend to follow suit, the CFMEU in Queensland had campaigned for the laws to cover mining and was disappointed that the new laws did not do so.
The Queensland Government has stated its intention to press for similar amendments to be made to model WHS laws as part of the National Review of Model WHS Laws.
The Queensland offences apply to persons conducting a business or undertaking (PCBUs) and senior officers of a PCBU.
A PCBU commits an offence of industrial manslaughter if:
- a worker dies in the course of carrying out work for a business or undertaking (or is injured and later dies)
- the PCBU's conduct causes the death; and
- the PCBU is negligent about causing the death.
The maximum penalty for a body corporate is 100,000 penalty units (currently $10,000,000).
A senior officer of a PCBU commits an offence of industrial manslaughter if:
- a worker dies in the course of carrying out work for a business or undertaking (or is injured and later dies)
- the senior officer's conduct causes the death; and
- the senior officer is negligent about causing the death.
The maximum penalty for this offence is 20 years' imprisonment.
A "senior officer" of a corporate PCBU is an "executive officer" of the PCBU. An "executive officer" is a person who is concerned with or takes part in the corporation's management, whether or not that person is a director or the person's position is given the name "executive officer".
Employers should ensure that executive officers and senior management are aware of the new offences of industrial manslaughter and the steps they can take to prevent allegations of negligent conduct in respect of work health and safety matters.
