2023 has been a significant year for Australia’s work health and safety legal landscape, with various cases and prosecutions, and various changes to the work health and safety laws in each State and Territory.
Now, more than ever, it is important for companies, officers and workers, particularly those with cross-jurisdictional operations, to know and understand their work health and safety duties and obligations.
This article provides a snapshot of the work health and safety changes and legal developments in 2023 relevant to the construction, development, infrastructure, mining and renewable energy sectors.
Commonwealth/Australia
In October 2023, Safe Work Australia announced that it would move to prohibit the use of engineered stone, after the publication of its Decision Regulation Impact Statement: Prohibition on the use of engineered stone. This follows the increasing number of workers suffering from the severe incurable lung disease silicosis after exposure to silica dust from engineering stone.
In December, WH&S Ministers from each jurisdiction agreed to Safe Work Australia’s recommendation. Amendments to the model WH&S legislation will be drafted and then implemented in each state or territory’s WH&S Act or Regulations.
On 7 December 2023, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 passed through the Commonwealth Parliament. Along with a number of other amendments, this Bill introduces the offence of industrial manslaughter into the Work Health and Safety Act 2011 (Cth), with penalties of up to 25 years imprisonment for an individual or $18 million for a body corporate.
Category 1 offences under the Cth WH&S Act now include negligence along with reckless conduct. This widens the scope of liability for companies to be charged with this offence.
Queensland
In the wake of WorkSafe Queensland’s state-wide enforcement initiative for the construction industry and the “crack down” on work health and safety breaches, there have been several key developments.
On 30 November 2023, the Queensland Government introduced the Work Health and Safety and Other Legislation Amendment Bill 2023, which sought several amendments to the Work Health and Safety Act 2011 (Qld).
Perhaps most significantly, the amendments mean that companies cannot obtain, provide or take the benefit of insurance, or an indemnity, in relation to any monetary penalty imposed on the company under the WH&S Act.
If passed, this offence carries a penalty of up to $77,400 (500 penalty units).
Typically, when a workplace incident occurs, the insurer of a company will step in and defend the prosecution case on the company’s behalf. This is generally based on the insurer’s right to step in, manage and minimise the insurers potential exposure to a monetary penalty. Such insurance is no longer possible, and companies must be mindful of this. If a workplace incident occurs, you will very likely need to seek and directly pay for legal representation – especially if a serious offence is alleged and prosecuted.
Earlier in the year, we also saw the introduction of new duties and a Code of Practice regarding psychosocial risks and hazards. The new Code has been the subject of debate, concern and uncertainty, especially in the building and construction industry. CDI Lawyers has previously prepared an article on the changes which can be found here.
A Code of Practice also commenced in relation to respirable crystalline silica, in line with increased awareness and other protections against the health consequences of exposure. The Code provides practical guidance on meeting work health and safety obligations in relation to eliminating, or at least minimising, the risk of exposure to silica dust.
Finally, the Queensland Court of Appeal heard an appeal of a prosecution against a director and company in the building and construction industry relating to serious WH&S breaches. The case related to the 2019 incident when workers were utilising a front-end loader as a makeshift elevator platform to carry out works at height. In addition to the obvious improper use of this machinery, the workers did not have any fall protection measures in place, such as wearing a harness. The extent of their safe system of work was one worker holding onto the other worker to prevent them from falling.
In the first instance, His Honour, Judge Long SC, heavily criticised the failures in safety by both Cordwell Resources and its director, commenting that “the reckless conduct was not just engaged in without reasonable excuse but with a degree of planning and reflection”. Cordwell Resources was convicted and fined $500,000 and the director was sentenced to six months imprisonment (wholly suspended).
On appeal, which was heard in May 2022 and the decision delivered in March 2023, the Court of Appeal dismissed the challenge to these sentences. The Court held that the sentences were not “manifestly excessive”, noting in particular that the director’s “moral culpability” and “degree of personal recklessness” was “high and direct”. McMurdo JA also noted that it was open to the sentencing judge to have imposed a fine on the director instead of imprisonment.
New South Wales
In October 2023, the New South Wales Government formally committed to enacting a provision for the offence of industrial manslaughter. It is expected that such laws will be introduced in 2024 – as at the date of this article, no such bill has been introduced.
On 12 October 2023, the New South Wales Government also introduced changes to its Work Health and Safety Act 2011 (NSW) which will commence on 1 July 2024. The legislative changes include significant increases in the maximum fines for category 1 offences (gross negligence or reckless conduct), with the maximum jail time doubling and maximum penalties more than doubling.
It is expected that such increases were the results of various criticisms and protests as to the NSW penalties for serious breaches being inadequate, including in relation to the Macquarie Park Project incident where Synergy Scaffolding Services Pty Ltd and GN Residential Construction were both found guilty and fined for serious safety breaches that led to the tragic death of a worker, and serious injuries of another worker, when the Project’s scaffolding system collapsed. Despite the fine handed down to Synergy Scaffolding Services Pty Ltd being the largest ever in NSW, there was harsh criticism directed at whether the maximum fines under the NSW WH&S Act are sufficient, most poignantly from the victim’s mother who publicly stated that “two million dollars for a big builder is nothing, it’s laughable.”
Since 2020, the NSW WH&S Act has prohibited insurance coverage for WH&S liability. Similar to Queensland, the recent changes also fully ban insurance – such that even if an insurance contract is entered into, it will be void and cannot be relied on.
Again, this means that companies that have previously relied on insurance providers for representation in WH&S proceedings will likely need to engage lawyers instead.
Further changes include that individual officers or the board of directors’ conduct can be imputed to the company as ‘corporate culture’ – which can now be considered in relation to a work health and safety offence.
South Australia
South Australia has adopted the industrial manslaughter offence. This makes six state and territory jurisdictions that have introduced such provisions at this stage. In line with other jurisdictions this year, South Australia also introduced regulations regarding psychosocial risks and hazards.
Victoria
Victoria is the only jurisdiction that has not enacted the Model WH&S Act, instead still using the Occupational Health and Safety Act 2004 (Vic).
The most significant development for Victoria for 2023 was in October, when the office of the Coroners Court Victoria was successfully prosecuted and found guilty for breaching its psychosocial health and safety obligations after a worker tragically took their own life. The investigations identified that, for several years, workers were at risk from exposure to traumatic materials, role conflict, high workloads and work demands, poor workplace relationships and inappropriate workplace behaviours.
The Coroners Court was fined $380,000 for failing to eliminate or mitigate psychosocial risks for its workers.
This decision is reflective of the nationwide shift in attitude towards work health and safety obligations in relation to mental health and toxic workplace cultures.
Australian Capital Territory
Workplace sexual assault is now a ‘notifiable incident’ under the Work Health and Safety Act 2011 (ACT), imposing a duty on PCBUs to notify the WH&S regulator immediately after such an incident occurs. This means that as soon as a PCBU becomes aware of an incident of suspected or actual sexual assault, the PCBU must report it and notify WorkSafe ACT.
The ACT has joined other jurisdictions, outlined above, with introducing duties around managing psychosocial risks and hazards into its WH&S legislation with an accompanying Code of Practice.
A Code of Practice for managing the risks of silica dust commenced on 15 November. Similar to Queensland, the Code outlines how PCBUs can comply with their existing work health and safety duties and practically manage or eliminate silica dust exposure.
Western Australia
Fortescue has entered an Enforceable Undertaking with WorkSafe Western Australia to deliver wide-ranging strategies to address inappropriate workplace behaviours in the mining industry. This follows an alleged failure to comply with a WH&S inspector’s request for documents under the Work Health and Safety Act 2020 (WA).
It has committed to spending over $1.4 million, which is well above the expected fine if it was convicted. This money will be applied to a number of projects and initiatives following the “Enough is Enough” report, published following the WA Parliament’s Inquiry into Sexual Harassment in the Mining Industry.
Northern Territory
A Code of Practice and amendments to the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) and regulations in relation to managing psychosocial risks and hazards became effective on 1 July 2023.
In April 2023, construction company Whittens Pty Ltd was convicted and fined $425,000 over the tragic death of a worker in 2017 at the $50 billion Ichthys LNG Project in the Northern Territory.
In the same proceedings, CDI Lawyers acted for the contractor who had engaged Whittens for the project. Our client was also charged with an alleged WH&S offence; however, we successfully had the charge against our client struck out in 2020.
Tasmania
The Tasmanian Government has also amended the Category 1 offence under the Work Health and Safety Act 2012 (Tas), to cover gross negligence, in addition to reckless conduct.
Takeaway
This year has been yet another significant year for work health and safety changes. We have seen a particular focus on psychosocial risks, reflected across many jurisdictions, and the introduction of the industrial manslaughter offence. Developments continued in relation to respirable silica dust and engineered stone, which we expect will be the subject of further changes in 2024.
CDI Lawyers will continue to keep you up to date with any relevant WH&S developments and future changes into 2024.
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