Queensland’s industrial manslaughter laws explained

Queensland has passed an industrial manslaughter bill, meaning if an employee is killed on the job due to negligence, directors may face up to 20 years’ imprisonment and organisations fines exceeding $10 million. Safe to Work investigates what the new laws mean for mining.

The Mineral and Energy Resources and Other Legislation Amendment Act 2020 was passed in Queensland Parliament during May, introducing industrial manslaughter as an offence into all resources laws, including mining, quarrying, oil and gas and explosives acts.

This means the offence of industrial manslaughter will apply when the court finds an employer or senior officer’s criminal negligence is the cause of death of a worker while working in any of these environments.

These changes are in line with the existing industrial manslaughter offences under Queensland’s Work Health and Safety Act 2011, providing consistent treatment of criminal negligence across all industries.

McCullough Robertson Lawyers is working with mining organisations to ensure they are across the new laws and that they have all appropriate safety procedures in place to ensure workers are coming home from their job safely every day.

As McCullough Robertson partner Cameron Dean explains, while operators in the resources sector all endeavour to make safety at work a priority, Queensland has unfortunately had a bout of accidents during the past five or so years.

With the new industrial manslaughter penalties now passed in parliament, it is only a matter of time before the laws are proclaimed and officially enforced in Queensland.

The laws will add new incentive to review safety measures to ensure no Queensland mines are at risk of breaching them.

“What this piece of legislation does is introduce a new offence into Queensland’s resources work health and safety laws,” Dean tells Safe to Work.

“Previously, the Work Health and Safety Act 2011 industrial manslaughter offence had covered every industry since October 2017 except for the resources sector.

“The rationale for bringing in the offence is that whilst individuals and corporations could be prosecuted for manslaughter under criminal code, there was limitation around larger organisations or officers being successfully prosecuted for the death of a worker.”

This now means that organisations and their most senior directors and supervisors will face severe consequences should one of their workers be fatally injured on the job.

“What this intends to do is bring into play a new offence that will have repercussions for people at the most senior end of the corporation and the corporation itself,” Dean explains.

“This is to motivate those making decisions in organisations to be held accountable to a much higher level for their safety practices, or else the penalties by way of fines and imprisonment could be imposed.”

In addition to the organisation and key directors, others within the organisation could also be up for penalisation, depending on the situation of the accident and the size of the organisation, according to Dean.

McCullough Robertson Lawyers partner Cameron Dean.

“Others exposed to the new industrial manslaughter laws are senior officers of an entity, those who are directors, and it can go below a directorial level, to a senior officer, for example,” he says.

“At this level, there is no financial penalty for senior officers, it is imprisonment, so this is what is potentially on the table if these obligations are breached.”

These penalties include a maximum possible fine of just over $13 million for organisations, compared with $10 million for industrial manslaughter legislation in other industries and up to 20 years imprisonment for mining managers, directors and other senior staff.

Mining organisations and directors will also not be covered by insurance for the penalties, as industrial manslaughter is a criminal offence.

“There are limits on what insurance can cover for under criminal offences,” Dean says. “There may be some defence costs that can be covered but beyond that, if you do get penalised this is not something operators can get insurance on.”

For coal mine operators, there are also new amendments to the Coal Mining Safety and Health Act 1999 that must be considered.

This includes a new requirement that statutory office holders must be employees of the coal mine operator, including contract workers.

Dean warns that Queensland coal miners have 18 months to ensure that all relevant workers contracted to work at the site are direct employees of the company in 18 months’ time or face penalties.

“The clock is ticking for coal mine operators to ensure workers in statutory positions are employees, not contractors,” he says.

“This includes underground mine managers, ventilation officers and currently contracted statutory roles.Under this new legislation, they must be employees of the mine operator.”

This is to ensure that all safety breaches and concerns are being reported, as contract or casual workers often do not feel as comfortable in making complaints against a workforce as full-time employees do.

“It is believed that if you are employed you will feel safer to raise complaints about any safety risks in your workplace without fear of reprisal or being terminated,” Dean says.

“This could be a headache for some operators or companies who may have a company within the organisation’s group that provides labour, enabling you to shift workers from mine to mine.

“Going forward operators will be far more limited in their ability to do this and it may cause practical issues for some operators.”

With Queensland leading the way in being the first Australian jurisdiction to introduce industrial manslaughter laws into the resources industry, could other states potentially be looking to introduce these laws and penalties? New South Wales, for example, introduced amendments to its work health and safety laws that hold a duty holder responsible for recklessly exposing a person to the risk of death.

Dean says other states may not feel the same level of motivation that Queensland did, due to its record of accidents.

“It will come down to each particular industry and whether they feel that it is the best course of action to ensure workers’ safety,” he explains.

“Since Queensland has had a record of cases and an independent review by the Brady Review of all fatal mining incidents in Queensland, other states may be less motivated to introduce these laws, but when it comes to safety, you can never say never.”

With safety already being such a high priority for the mining industry, the industrial manslaughter laws are a part of the puzzle to creating a safer resources sector in Queensland and holding those at the highest level accountable for what happens to workers.

“In my dealings with those within the mining industry, people are doing their best to comply with the standards they need to comply with,” Dean concludes.

“However, incidents are still happening and the industry needs to have a good, hard look and work out a cultural shift to get people to work safely, as opposed to being in a position they shouldn’t be.”

This article appears in the July–August edition of Safe to Work.

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