In October 2017, the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) (WHS Amendment Act) introduced industrial manslaughter offences in Queensland. The introduction of the offences was in response to the recommendations of the Best Practice Review of Work Health and Safety in Queensland. The Review followed the separate multiple fatalities at Eagle Farm Racecourse and the Dreamworld Theme Park in 2016.
The WHS Amendment Act made it an offence for a person conducting a business or undertaking or a senior officer to negligently cause the death of a worker. At the time of introducing the WHS Amendment Act, the Queensland Government decided against introducing similar provisions in the State's resources safety legislation, opting instead for further consultation with industry and stakeholders.
In November 2018, the Queensland Department of Natural Resources, Mines and Energy released a discussion paper inviting consultation on the introduction of industrial manslaughter offences in the Queensland resources industry. The calls for industrial manslaughter offences intensified in July 2019 after a Joint Communique called for a safety reset across Queensland mines and quarries following multiple deaths. In the 18 months leading up to July 2019 there had been eight deaths at Queensland mines and quarries.
Introduction of Industrial Manslaughter Offences in the Resources Industry
The key amendment made by the Bill is an offence of industrial manslaughter in the:
- Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act);
- Explosives Act 1999 (Qld);
- Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSH Act); and
- Petroleum and Gas (Production and Safety) Act 2004 (Qld).
For mines, the offence occurs for an employer or senior officer at a mine where:
- a mine worker dies in the course of undertaking work or is injured and later dies; and
- the employer or senior officer's conduct causes the death; and
- the employer or senior officer is negligent about causing the death.
An employer is a person who employs or otherwise engages a mine worker in relation to operations at the mine. Importantly, the employer of a mine worker can be a contractor or service provider to the mine.
The offence provisions in the gas industry apply for employers for an operating plant or gas work in respect of workers involved in carrying out work at operating plant or at a place where gas work is carried out.
A senior officer of an employer is an executive officer of the corporation, or the holder of an executive position in relation to the employer who makes or takes part in decisions affecting an employer's function. Depending on the corporate structure of the mine, there may be scope for a range of individuals in upper management positions to be captured by the senior officer definition. The provisions as currently drafted would not exclude the possibility of site senior executives being senior officers.
The maximum penalty for an individual is 20 years imprisonment and for a body corporate is a fine of over $13M.
Coal mines must employ workers in statutory roles
Other amendments in the Bill require individuals appointed to statutory roles for coal mining operations – namely site senior executives, ventilation officers and underground or surface mine managers – to be employees of the coal mine operator. Currently, those individuals may be employees of a contractor or service provider to the coal mine operator. Where those roles are currently filled by contractors there will be an 18 month period allowed to make the transition.
Changes to the Bill
A number of amendments were made to the Bill before it was passed to implement recommendations by the State Development, Natural Resources and Agricultural Industry Development Committee and to correct drafting errors. The amendments make the following changes relevant to safety matters:
- Extend the period for compliance with the new statutory office holder employment requirements in theCMSH Act to 18 months (up from 12 months);
- Increase the maximum penalty for reprisal offences in the CMSH Act and the MQSH Act to 1,000 penalty units, so that the penalty aligns with that in the Work Health and Safety Act 2011 (Qld) for the similar offence; and
- Correct a minor error in the Resources Safety and Health Act 2020 (Qld) amendment of the delegation powers for the Chief Executive Officer of Resources Safety and Health Queensland in the Petroleum and Gas (Production and Safety) Act 2004 (Qld) by inserting the ability for the CEO of RSHQ to delegate their powers under the Petroleum and Gas (Production and Safety) Act 2004 (Qld);
The Bill will commence on a day to be fixed by proclamation.
The Bill creates significant potential liability for employers and senior officers in the Queensland resources industry. In light of the changes, we strongly advise businesses to review existing work health and safety processes and procedures to ensure compliance and, in the event of a fatality, to ensure that legal advice is sought immediately.
Access the Bill here.
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