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Feeling the heat in work health and safety

Feeling the heat in work health and safety

21 Feb 2018

Article written by: Alan Girle

Industrial manslaughter prosecutions in Queensland
The Queensland government has added industrial manslaughter to the statutes for any business that operates in Queensland. With penalties of up to $10M and 20 years imprisonment, the new offences send a clear message to the business community that Queensland will be tough on offenders.
 
As part of the legislation, the government has created a new role of “Workplace Health and Safety Prosecutor” with considerable statutory power. While debate continues about the government’s willingness to take on difficult cases, 2018 might see the WHS Prosecutor bring the first of the industrial manslaughter charges.
 
Failure to consult can be a crime
2017 had several important decisions made. From South Australia, we saw the first conviction for a failure to consult. A second conviction was imposed in Queensland in late 2017. This is an obligation that might see more enforcement in 2018.
 
Statutory obligations for consultants
Also from South Australia, we saw increased focus on the obligations of independent consultants. In 2017 a mechanical engineering company challenged a prosecution on the basis that its obligation to ensure the safety of an amusement ride did not extend beyond the date that it certified the ride to be safe. However, the Court was not persuaded, allowing the prosecution to continue. Learning from this decision, independent consultants should now take greater care in what they certify.
 
Successful prosecution over workplace bullying
In a small but important Victorian decision, a tree maintenance company was convicted and fined for failing to keep its employees safe from bullying behaviour. In that case the bullying was aggressive behaviour in the form of shouting, swearing and inappropriate comments. Prosecutions for bullying are no longer theoretical and we may see more prosecutions based on bullying behaviour in 2018.
 
Harsher penalties
In 2017 we saw continuous growth in the level of penalties imposed:
  • A Victorian engineering company was fined $1.3M for three offences relating to a failure to ensure the safety of a street sweeper during late-night roadworks.
  • In NSW, a construction company was fined $1M after a worker was electrocuted and set on fire.
  • The principal of a South Australian trucking company who had failed to maintain the brakes in his fleet of trucks, was unsuccessful in overturning a 12-year prison sentence.
Compliance is key
In 2018 we are likely to see more prosecutions and larger penalties. Regulators are looking to the broader range of obligations and enforcement will not be isolated to physical injuries. What won’t change is that businesses that are genuine about safety are unlikely to find themselves in the Courts.
 
It’s a great time to go back to basics:
  • Do your leaders ‘get’ safety?
  • Is your engineering up to scratch?
  • Is your safety management system really working on the shop floor or is it simply a term known only to your WHS team?
  • When is the last time you personally did a safety walk around your business?
 Contact ABLA on 1300 565 846 or info@ablawyers.com.au if you have any questions raised in this article.

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