Safety in the workplace in Queensland is regulated under the Work Health and Safety Act (WHS Act). In every workplace, employers have a duty to provide a safe work environment for their workers and to minimise the risks arising out of hazards.
Workplace Health and Safety Queensland investigate incidents arising from injury or death in the workplace. Where risks arising out of hazards were known or ought to have been known to cause death or serious injury to individuals, and that occurs, then it is likely the business will be prosecuted.
When an incident occurs which is considered in breach of WHS legislation, the business will likely be ordered to appear in court. Workplace Health and Safety Queensland will conduct an investigation. They will consider whether the business had in place any or any adequate safe work methods for the works being carried out, whether the company ensured the provision and maintenance of a work environment without risks to health and safety and if they carried out any or any adequate risks assessments for the works to be carried out.
Following the investigation, WHS Queensland may consider that the business failed to ensure the health and safety of its employees and if it had carried out a risk assessment for the processes, it could have eliminated the risk and implemented appropriate control measures. The business as such may be served with a prohibition notice requiring it to stop carrying out any similar works and served with a complaint and summons to appear in court and to answer the matters in court.
The Court has a large discretion as to what penalties it may impose. Fines can be significant and can range from a few thousand dollars to hundreds of thousands of dollars and in particular, for repeat offenders or where the injury is serious or death is a result and as such, serious ramifications including for the ongoing viability of that business.
The court will consider the factual circumstances leading to the incident such as the instructions given to workers, whether there was adequate supervision and training to ensure systems in place are understood and followed and minimising risks, any protection controls in place, the proper maintenance of plant and the like.
As penalties, courts can impose fines, undertakings, good behaviour bonds, training orders under the Work Health and Safety Act and consider whether to record a conviction or otherwise, among others.
Similar prosecutions can occur under other legislation such as the Electrical Safety Act or the Safety in Recreational Water Activities Act.
One method of dealing with a prosecution is by way of enforceable undertakings known as WHS Undertakings or electrical safety undertakings. They are high level sanctions for contravention of the various safety acts and are prescribed under the safety acts providing an alternative to a court imposed sanction and without recording a conviction or a finding of guilt.
A regulator under the safety acts can accept enforceable undertakings which are legally-binding commitments to implement effective health and safety initiatives to provide tangible benefits for workers and the relevant industry.
The cost of implementing enforceable undertakings can be considerable and could cost more than any fine that a court could impose for the incident, so they need to be considered in each instance whether they are an appropriate method to finalise the matter.
Due to the ramifications of a prosecution under the WHS legislation, it is important you have appropriate and experienced legal representation in dealing with Workplace Health and Safety Queensland and also at Court.
Aitken Whyte Lawyers
Level 2, 303 Adelaide Street, Brisbane
Ph: +617 3229 4459
Fax: +617 3211 9311
Last updated: 10 May 2018