The Work Health and Safety Act (Qld) is based on the Model Work and Safety Laws developed by Safe Work Australia (Cth).

The primary purpose of the Work Health and Safety Act is to protect workers and other persons from work related harm.  At the same time the Act is not intended to have operation in relation to public health and safety more broadly without a necessary connection to work.

Navigating the Work Health and Safety laws in Queensland can be difficult.  Outlined below is an overview key components of the Act.

Primary Duty of Care

The first and perhaps, most broad duty holder and described as a primary duty of care, applies to any person who is carrying out a business or undertaking. The phrase “business or undertaking” is not defined and must be given its ordinary meaning.

If the person is carrying out a business or undertaking they must, so far as is reasonably practicable, ensure the health and safety of:-

• workers engaged or cause to be engaged by the person; and
• workers who’s activities in carrying out work are influenced would directed by the person while the workers are at work in the business or undertaking.

The person carrying out a business or undertaking also has a duty to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of business or undertaking.

This means the primary duty of care extends to other persons who may not be involved in the actual work. It includes people who may attend the workplace, patrons and other people who may be in or near the workplace at any given time.

The Act defines the meaning of worker. A person will be considered a worker if the person carries out work in any capacity for a person conducting a business or undertaking. This includes persons working as:-

• employees;
• contractors;
• subcontractors;
• the employees of a contractor or subcontractor;
• employees of a labour hire company who has been assigned to work;
• apprentices it or trainees;
• students engaged in work experience;
• volunteers; or persons of a prescribed class.

A person will also be considered a worker if the person is conducting a business or undertaking and the person is an individual who is also carrying out work for that business or undertaking. For example an electrician who is a sole trader carrying out a business or undertaking providing services, who also works in that business or undertaking, will be considered a worker.

These duties are not transferable therefore a duty cannot be transferred to another person. A person may also have more than one duty or by virtue of there being considered more than one class of duty holder. For example a person may have a duty as an officer of a corporation while simultaneously having a duty as a worker.

Where more than one person has a duty of care, each duty holder must discharge that duty to the standard required by the Act. This is the case even in circumstances where another duty holder has the same duty

Section 17 of the Act qualifies the management of the risks by the duty holder, so far as is reasonably practicable in the circumstances. If it is not reasonably practicable to minimise those risks to health and safety, the duty holder must minimise those risks are far as is reasonably practicable.

Meaning of ‘Workplace’

The Act defines ’workplace’ broadly. Essentially a workplace is any place where work is carried out for a business or undertaking. It includes any place where a worker goes, or is likely to be, while at work.

This definition is described as a key definition that in many ways defines the scope of rights, duties and obligations under the Act.

A ‘workplace’ is a place where work is performed from time to time and is treated as such under the Act even if there is no work being carried out at the place at a particular time. In other words, there is no requirement for an immediate temporal connection between the place or premises and the work to be performed.

This is because the main object of the Act is to secure the health and safety of workers at work as well as others who are in the vicinity of a workplace. It is important to note that a place does not cease to be a workplace, simply because there is no work being carried out at a particular time.

Further Duties

Outside of the primary duty of care, the Act also prescribes further duties for persons conducting a business or undertaking in certain circumstances.

For example persons who (i) have the management or control of workplaces; or design, import, supply or commission plant, substances; or structures, also have specific duties under the Act.

No Requirement for Injury or Death

It is important to keep in mind that you can be prosecuted for failing to maintain a safe work environment even when no incident or injury has occurred.

It is therefore important that person’s conducting businesses or undertakings take a pro-active approach in discharging health and safety obligations in the workplace.

Limitation Periods

There are time limits that apply to prosecutions for work health and safety contraventions in Queensland. Proceedings must commence within 2 years of the regulator being notified of the offence or if there is a Coronial Enquiry, one year after the Coronial Enquiry.

Discretion to Prosecute

Where a workplace incident or accident occurs, a person conducting a business or undertaking may face criminal prosecution.

The regulator has a discretion to decide whether or not to lay charges. In exercising that discretion the regulator will consider a number of factors. Some of these factors include the gravity of the breach, the past health and safety record of the accused, and the public interest of pursuing a prosecution. Often, the Crown will seek to do this by establishing identifying;

1. whether there are gaps in your health and safety management system;
2. the extent to which the person failed to minimise hazards created by plant or equipment in your workplace;
3. the extent to which other reasonably practicable measures were available to implement but were not carried out;
4. whether the person was proactive in identifying risks;
5. whether or not a job safety analysis was carried out prior to works commencing;
6. whether safe work procedures were adequate or inadequate; and
7. whether the person provided workers with adequate information, instruction, training and supervision.

In certain circumstances, the regulator is more likely to prosecute breaches of the legislation. For example the regulator is more likely to commence proceedings if the breach resulted in a serious injury or fatality, or it is not the person’s first offence.

Alternatives to Criminal Prosecution

In some cases the Regulator may consider entering into an enforceable undertaking as an alternative to prosecution.

An enforceable undertaking as a legally binding agreement entered into by a person or business as an alternative to having the matter decided through the prosecutorial process. It is important that you obtain legal advice before you enter into an enforceable undertaking as it requires you to admit that you breached your health and safety obligations; and agree to certain undertakings that are beneficial to safety in the workplace and/or the broader community.

Category 1,2 and 3 Offences

Category 1 Offence – Reckless conduct

The most serious offence under the Act is that of reckless conduct. This is a category one offence carrying with it penalties which include fines and periods of imprisonment of up to five years.

A person will commit a category one offence if that person: –

• has a health and safety duty under the act; and
• without reasonable excuse, engages in conduct that exposes any individual to whom that duty is owed to or risk of death or serious injury or illness ; and
• is reckless as to the risk to an individual of death or serious injury or illness.

In order to convict a person of an offence under the Act the Crown must prove each element of the offence beyond reasonable doubt. That means the onus is on the crown to prove the guilt of the person or business charged. The burden of proof is to the criminal standard of beyond reasonable doubt. The crown must prove beyond reasonable doubt the following elements:-

1. The person has health and safety duty
2. The person without reasonable excuse engaged in conduct
3. That conduct exposed to an individual to whom the person owed a duty of care
4. To risk of death or serious injury or illness
5. The personal was reckless as to the risk to an individual of death or serious injury or illness

A category one offence is a crime and can be dealt with on indictment.

Category 2 Offence – Failing to comply with health and safety duty

The next level down offence is a category 2 offence. A person will commit a category 2 offence, if the person has health and safety duty and the person fails to comply with that duty and that failure exposes an individual to or risk of death or serious injury or illness.

The Crown must prove the following elements:-

1. The person has a health and safety duty ; and
2. The person fails to comply with that duty; and
3. That failure exposes any individual to or risk of death or serious injury or illness

For this offence there is no requirement that the Crown prove the person engaged in conduct. Nor is there any requirement that the Crown prove that they were reckless to the exposure of an individual to risk of death or serious injury or illness. Here the Crown must only prove that the person had a health and safety duty and that they failed to comply with that duty.

Maximum penalties for a category 2 offence involve fines.

Category 3 offence – Failure to comply with health and safety duty

A person will commit a category 3 offence if the person has a health and safety duty and the person fails to comply with that duty.

The Crown must prove the following elements:-

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

Unlike a Category 1 or 2 offence there is no requirement that the Crown prove that the failure to discharge the duty of care exposed an individual to a risk of death or serious injury or illness.

Maximum penalties for a category 3 offences involve fines.

Defending a Prosecution

If a Regulator exercises their prosecutorial discretion to initiate proceedings it will issue a document called a Complaint and Summons.

This document will require the person charged to appear before an Industrial Magistrate.

Anderson Fredericks Turner can provide you with advice on how to defend a charge of failing to maintain a safe workplace and advise you as to what you will need to demonstrate to the court to defend such a charge.

To avoid prosecution, it is recommended that all persons that have a work health and safety duty have a compliant Health and Safety management system in place. Such a system should also ensure workers and officers are trained and competent in health and safety management systems and that all reasonably practicable steps are taken to minimise or eliminate the risk of injury in the workplace

Plea in Mitigation

Sentencing is a process where the court considers the nature of the offence and imposes a penalty. Before the Court passes a sentence your lawyer will have the opportunity to speak on your behalf. Our lawyers are skilled in making submissions designed to persuade the Court to provide the most lenient possible sentence that can reasonably be expected for the offending in question.

In preparation for any sentencing proceeding our lawyers research comparable case law in order to identify the appropriate sentence range. Armed with relevant cases our lawyers seek to guide the Court so as to achieve the best possible outcomes for our clients.

Our lawyers also have experience identifying and stressing mitigating facts such as:-

• the extent of the breach;
• consequences of the breach (if any);
• whether the person has demonstrated any remorse;
• whether the person co-operated with the regulator;
• The person’s past record of health and safety; and
• any remedial steps taken since the alleged contravention.

If you, or your business, have been charged with an offence under the Work Health and Safety Act it is wise to contact an experience lawyer as early as possible so as to be assured of the best possible outcome for your particular case.

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to criminal defence or any other issue involving the criminal law. Contact us for authoritative advice and representation.