Workplace Health and Safety Offences

The Work Health and Safety Act (hereafter ‘the Act’) was enacted into Queensland law in 2011.

The Act places primary responsibility for work health and safety on business owners and employers. The law requires the business owner to, so far as is reasonably practicable, ensure the health and safety of workers at the workplace. While employees are expected to take reasonable responsibility for their own health and safety, the responsibility to maintain a safe workplace resides primarily with the employer.

All workers are covered by the Act, including employees, contractors, subcontractors, volunteers and work experience students.

The legislation is 269 pages long. It covers a lot of ground, but this article will primarily focus on offences created under the Act.

Health and Safety Duty Offences

The Act contains prosecutable offences.

Investigations of alleged breaches of the Act are undertaken by Workplace Health and Safety Queensland, which is the government regulator that monitors and enforces compliance with the Act.

If an investigation is undertaken of a workplace, and the investigation concludes there were unsafe practices in a business, or there was a failure to comply with the Act led to a worker’s injury, then an investigator from the Workplace Health and Safety may recommend prosecution. If a prosecution is recommended, then the prosecution is pursued by the Office of the Work Health and Safety Prosecutor.

If a prosecution is commenced, depending on the category of offence, the prosecution will be commenced in either the Magistrates Court or the District Court.

Categories of Offences

The Act provides for three categories of offences for breaches of health and safety duties.

Category 1: A duty holder engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness. This offence is a crime and will be prosecuted in the District Court.

Elements of the offence:

1. A person has a health and safety duty,
2. Without reasonable excuse,
3. The person engages in conduct,
4. That exposes an individual to a risk of death or serious injury or illness,

And

5. The person is reckless as to the risk to an individual of death or serious injury or illness.

Category 2: A duty holder fails to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness.

Elements of the offence:

1. A person has a health and safety duty,
2. The person fails to comply with that duty,
3. The failure exposes an individual of death or serious injury or illness.

Category 3: A duty holder fails to comply with a health and safety duty.

Elements of the offence:

1. A person has a health and safety duty,
2. The person fails to comply with that duty.

Proceedings for Category 2 and 3 offences will be taken summarily in the Magistrates Court.

Please note I have not covered the most serious category of ‘industrial manslaughter’ because its occurrence is so rare.

The maximum penalties for each category are as follows:

Evidentially, the penalties for breaches of the Act can be very severe, and much more costly the breaking criminal laws.

Examples of Work Health and Safety Breaches

A pig abattoir commenced use of an acid cleaner in its premises. Its staff were instructed in the use of the acid and were provided with protective clothes, including chemical resistant boots, chemical resistance gloves, cotton coveralls, goggles, breathing protection and knee pads. Staff were instructed not to kneel in the acid. Nevertheless, the protective gear was insufficient, and a worker sustained acid burns to his knee after contact with the acid. A second worker also sustained minor burns to his knees. The Magistrate ordered a fine of $25,000 with no conviction recorded.

A solar power company had workers install a solar system on a two-storey home. A 7-metre ladder was used on the side of a 6-metre-high wall. A worker fell from near the top of the ladder. He suffered serious and lasting injuries, such that he required the use of a urinary catheter and manual emptying of his bowel. The magistrate’s view was the company failed to put systems in place to protect workers from such an injury (such as a harness). A fine of $40,000 was imposed, with no conviction recorded.

A company which leased machinery and supplied workers to operate the machinery, inadvertently allowed a worker without the appropriate licence to operate a heavy crane. The worker held other suitable licences and despite the company undertaking a licence audit a year before the offence, the lack of correct licence was not detected. The court fined the company $6,000 with no conviction recorded.

Finally, the last case concerns a company that undertook roofing work, including supplying and fitting roofs. The company was contracted to install roofing on large sheds on an old brickworks. A team of roofers were used for the job. One of the roofers fell six metres from the roof to his death. At no stage of the contract was safety railing installed on the outer edge of the roof. Measures that had been taken included safety harnesses and elevated scissor lifts to act as barriers at the outer edge. The worker had the protection of neither measures at the time of his fall. The evidence was safety railing would likely have prevented his fall. The company, after trial, was fined $1,000,000.

Conclusion

As can be seen, breaches of the Act can be prosecuted even when companies and individuals have made significant efforts to protect workers. The consequences of those breaches can be significant for the defendant, ranging to tens of thousands, hundreds of thousands and even millions of dollars. This article is only an introduction. If you or your company are prosecuted for breaching this Act, expert legal advice is critical. Clarity Law can help analyse your case, explore possible defences, and help you put your best foot forward with an excellent legal defence.