Work Health and Safety

When a business fails to provide a safe system of work for employees, customers or service providers and an injury occurs, Workplace Health and Safety Queensland (WHS) may investigate and in some cases prosecute an individual or the business, or both, for that failure.

There are different categories of offences for failing to comply with a health and safety duty under the WHS Act, depending on the degree of seriousness or culpability involved. Possible penalties for breaches of the law range from fines to lengthy jail terms.

More minor offences under that Act include:

• failure to comply with Health and Safety Duty Category 2 and 3 offences
• hindering or obstructing an inspector;
• impersonating an inspector.

Major offences under the Act could include:

• reckless conduct; and
• offences relevant to the assault, threatening or intimidation of an inspector.

Industrial manslaughter – the most serious WHS offence

The most serious offence is industrial manslaughter which is when a person conducting a business or undertaking (PCBU) or a senior officer, negligently causes the death of a worker.

In particular, the offence applies if:

• a worker dies or is injured and later dies, in the course of carrying out work for the business or undertaking (including during a work break); and
• the PCBU’s or senior officer’s conduct caused the death of the worker (i.e. the action or inaction of the PCBU or senior officer substantially contributes to the death); and
• the PCBU or senior officer is negligent about causing the death of the worker (i.e. the person’s action or inaction departs so far from the standard of care required).

Actions of employees on businesses

The legislation makes specific provision that any work or action done on behalf of a business by an employee, agent or officer of the business as part of their actual or apparent scope of employment, or within their actual or apparent authority, will be considered conduct also done by the business itself, as such making the business or employer capable of prosecution. See s244 of the Work Health and Safety Act 2001 QLD.

Court proceedings for a breach of duty or obligation

If after an investigation, a determination is made by an inspector that charges should be pursued, then an organisation or individual may find themselves brought before a court to answer allegations of a breach of a duty or obligation.

Offences involving reckless conduct will be prosecuted in the District Court, whereas lesser offences will be prosecuted in the Magistrates Court. 

There is also the ability for inspectors to issue on the spot fines by way of an infringement notice. If an inspector reasonably concludes that a person or organisation is committing or has committed an infringement notice offence under the legislation, then this option can be utilised.

Is your workplace under investigation by a WHS inspector?

If you or your workplace is approached by a WHS inspector as part of an investigation, then you should seek legal advice before answering questions or providing documents; even if the inspector produces a notice requiring you to do so.  

The legislation contains provisions to compel persons being interviewed to answer questions even if the answer may tend to incriminate them. Importantly, however, any such answer provided pursuant to the direction or notice cannot be used against that individual in any criminal or civil proceeding other than one for the provision of false information.  Despite this caveat on any directed answer, legal advice on your position should always be sought.

Gilshenan & Luton has a history of working i​n this area of law, both for those being investigated or facing charges, as well as prosecuting offences for workplace incidents.

Our lawyers have experience and expertise that can assist both individuals and organisations with investigations and/or prosecutions related to work health and safety. If you or your organisation are the subject of a WHS investigation, contact us for advice and representation.