Two More States Increase Penalties Over Unsafe Work

Queensland and Western Australia have recently joined Victoria in lifting penalties for employers who break safety laws.

It means states that have adopted the national model workplace safety laws are also “harmonising” penalties for breaking those laws. Employer who put their workers at risk can expect tougher penalties for common safety offences regardless of where they operate in Australia.

Victoria started the ball rolling in July by amending its 2004 Occupational Health and Safety Act which was the template Act for the national model laws adopted in most state and territory jurisdictions. The 40 changes by the Andrews Labor Government included scaling up several existing “low level” breaches to allow harsher fines of up to $200,000.

Queensland’s Palaszczuk Labor Government is planning to introduce a similar raft of changes after the Lyons Best Practice Review which recommended 58 changes to workplace safety laws.

Meanwhile Western Australia’s new McGowan Labor Government noted that penalties for safety breaches haven’t changed since its current state OHS Act was introduced in 2004. The government said new penalties will be consistent with the national model Act and include a “catch up” for inflation from 2010. The increase in penalties also “better reflects the importance of a safe workplace”.

These changes to penalties will apply to the current offences under the existing law. The changes are taking place while the WA government is preparing the adoption of the harmonised work health and safety bill scheduled in mid-2019.

Maximum penalties for offences against general provisions in WA will increase by $50,000 to $456,000. Serious offences by corporate bodies will attract a maximum fine of $2.7 million, up by $500,000. The harshest penalties for reckless individual employers will be a prison term lifted from two to five years.

The WA commerce and industrial relations minister, Bill Johnson, said the safety of WA workers was a priority for the McGowan government. “The new penalties will provide an incentive to comply with workplace safety laws and ensure penalties meet community expectations,” he said.

The Queensland government went a lot further and was much broader in the scope of tougher penalties. Its changes will require an amendment bill, similar to that of Victoria. The Queensland government plans to progressively introduce the various changes from December 1.

The headline change was delivering on a key election promise. This was to create a new offence of “industrial manslaughter”. The promise followed shocking incidents at Eagle Farm racecourse and Dreamworld. These work-related deaths triggered the review.

Unions have been calling for industrial manslaughter laws for decades as the ultimate sanction against employers who are shown after investigations of serious incidents at their workplace to have ignored their legal duty, sometimes after they have been warned by their workers to take “reasonable” measures to reduce the risk.

So far only the ACT territory government has introduced this controversial penalty. Queensland is therefore the first state to take the leap.

Queensland industrial relations minister Grace Grace said the new offence would send a strong message to employers. The maximum penalty for the new offence would be 20 years imprisonment for an individual. She said offenders could not avoid a penalty by hiding behind a corporate structure. A corporate offender could be fined up to $10 million.

“These new laws will ensure the Queensland’s work health and safety framework is robust and operates as an effective deterrent to those who choose to disregard the safety of their workers or of the public,” the minister said.

The changes in Queensland will include strengthening the state’s industrial relations tribunal by giving it greater independence. This will require setting up a dedicated statutory office to adjudicate on workplace health and safety prosecutions.

The lining up of three states to get tough on unsafe workplaces, and particularly the hard-headed approach in Queensland, has prompted some sober reflection by employers on the state of workplace safety in Australia.

In a recent annual safety forum, Australian Industry Group chief, Innes Willox, suggested safety through better workplace design is the preferred approach. He believed existing safety laws are adequate and had concerns about more punitive measures.

“The industrial manslaughter laws are another heavy instrument to try to impact change and we can’t see them working in the way it’s intended,” he said. “They’ll probably in the end create more trouble and create a situation where employers become even more risk averse.”