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:
Major offences under the Act could include:
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:
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.
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.
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 in 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.