Under recent changes to the Work Health and Safety Act there are now high penalties for negligent conduct leading to the risk of death of an individual in the workplace. It follows the recent Electrical Safety and Other Legislation Amendment Act 2024. Other changes include the introduction of additional powers and functions of health and safety representatives and permit holders. This article covers the changes expected to affect all Queensland workplaces.
Background
On 30 August 2024, the Electrical Safety and Other Legislation Amendment Act 2024 (‘Amendment Act’) made changes to the Electrical Safety Act 2002 , Work Health and Safety Act 2011 (WHS Act) and Safety in Recreational Water Activities Act 2011. The changes are a result of several reviews and follow other recent changes to WHS Act through the Work Health and Safety and Other Legislation Amendment Act 2024 that took effect between March and July 2024. The below changes have been made, or will be made, to the WHS Act:
| Negligence and industrial manslaughter
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In 2017, industrial manslaughter was included as an offence in Queensland under the WHS Act. Where a person dies as a result of the negligent conduct of an individual or body corporate, a penalty of up to 20 years imprisonment or more than $16 million apply. This extends to the senior officers, such as directors, CEOs and CFOs.
Additionally, where a person has a health and safety duty and they engage in conduct that exposes an individual to a risk of death or serious injury or illness and is reckless as to that risk, they could receive a penalty of up to:
This is classified as a Category 1 offence under the WHS Act. From 30 August 2024, those same penalties apply where a person has a health and safety duty, they engage in conduct that exposes an individual to a risk of death or serious injury or illness, and they engage in that conduct with negligence. Negligence commonly refers to the failure of an individual to exercise reasonable care and skill, where ‘reasonableness’ would be determined by the court. |
| Failure to comply with health and safety duty
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Where a person has a health and safety duty, they fail to comply with that duty, and the failure exposes an individual to a risk of death or serious injury or illness, the person could receive a penalty of up to:
This is classified as a Category 2 offence under the WHS Act and, unlike Category 1 offences, they do not require a finding that an individual acted in a reckless or negligent manner to the risk. From 30 August 2024, where it is alleged that someone has made a category 1 offence, but this is not found to have occurred, they may still be found to have committed a category 2 offence, if this is established by the evidence. |
| Industrial manslaughter involving bystanders and other non-workers
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From 30 August 2024, the scope of the industrial manslaughter offence is expanded to capture negligent conduct leading to the death of individuals to whom a health and safety duty is owed, but aren’t workers. This includes bystanders or other persons in the workplace controlled by the PCBU. The same penalties as provided above apply. |
| Powers to take photos and videos, take measurements and conduct tests
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Earlier this year, the powers of health and safety representatives (HSRs) and entry permit holders (EPHs) were extended under another amendment. This change further strengthens the role of HSRs to be able to engage in the investigation and reporting of health and safety concerns within their workplaces.
The Amendment Act amends the WHS Act to allow HSRs and EPHs to take photos, videos, measurements and to conduct tests at the workplace in certain circumstances. These changes commence on 1 January 2025. Before they are to commence, the Office of Industrial Relations will develop guidance material to assist HSRs, EPHs and PCBUs to meet their individual obligations and develop an understanding of each other’s powers and responsibilities. |
| Registered Training Organisation regulatory approval framework | From 30 August 2024, Workplace Health and Safety Queensland (WHSQ) will have the power to regulate the quality of training provided by Registered Training Organisations (RTO) for authorised training, such as high-risk work licence training.
Importantly, Work Health and Safety Regulation 2011 (WHS Regulation) does not currently provide a regulatory framework that can prescribe training and assessment standards. The amendment allows for this framework, once written into the WHS Regulation, to be enforceable.This amendment is intended to address concerns regarding the student outcome of certain training potentially leading to students not gaining the required skills and knowledge required to perform work safely. |
Compliance with the changes
These changes should not result in a need to change current WHS practices for most employers. These changes largely represent a greater emphasis on the need for business to be proactive in their approach to addressing WHS risks. It is recommended businesses invest in developing risk registers and, once in place, following the steps needed to manage the risks identified. This may mean tasking at least one person to be responsible for managing those risks in a structured manner e.g. annual audits, if they are not already in place. The need for a structured approach is greater, the more high-risk the workplace.
For RTOs these changes represent a step towards greater regulation and regulatory powers. It is recommended RTOs start preparing for those powers to take effect by developing their own frameworks to share with WHSQ.
Lastly, the final change involving HSRs and EPHs powers to take photos, videos, measurements and to conduct tests at the workplace does not occur until 1 January 2025.
