In Queensland the “Work Health and Safety framework” contains a mix of legislation and “Codes of Practice”. The goal of the Framework is to provide safe work environments and practices across various industries.
To achieve this goal, Work Health and Safety Queensland actively enforces the law.
Under Queensland law, it is a criminal offence to breach the work health and safety (WHS) laws. The enforcement of these laws is carried out by Work Health and Safety Queensland. They do this through a combination of audits and inspections, and by imposing fines or bringing a prosecution.
There are three main components to Queensland’s Work Health and Safety Framework:
The Act establishes requirements and standards that must be upheld to ensure the safety and welfare of people in the workplace. It imposes legal obligations and duties on employers and workers. It also has provisions in place that protect the general public from risks due to workplace activities.
The Act also contains a “general duty” for persons conducting business in Queensland. This is to ensure health and safety, so far as is reasonably possible, by eliminating risks to health and safety. Where that is not possible, those risks should be minimised as much as possible.
The Act was established to:
The Act does this by placing responsibility on employers and business owners to take all reasonable measures to ensure a safe and healthy working environment.
In December 2022, an independent review into the Act was completed. The Final Report from that review made 31 recommendations which have all been accepted by the Queensland Government. The Government is yet to announce the commencement of the relevant amendment provisions.
A helpful guide to the Act can be found here (https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0023/22289/guide-to-work-health-and-safety-act-2011.pdf)
The Regulations, like the Act, are legally enforceable. They provide further expansion to the Act by acting as a detailed resource on how to prevent or minimise risks in the workplace.
If you are conducting business in Queensland, you must take reasonable steps to eliminate or minimise risks and put in place an effective risk management process.
However, it is possible for the regulator to grant an exemption for compliance with provisions of the Regulations.
The Codes exist to provide practical advice on how to meet your work health and safety responsibilities.
If you are conducting business in Queensland, you need to follow an approved code of practice.
While it is possible to adopt another method or technical standard, it must provide an equivalent or higher standard of work health and safety than that required by the Codes.
Workplace Health and Safety Queensland and the Electrical Safety Office enforce the Framework in Queensland. They do this by conducting investigations and audits under the Act.
Broadly, Workplace Health and Safety Queensland is responsible for:
The prosecution of offences is conducted by the Office of the Workplace Health and Safety Prosecutor (OWHSP).
There are several reasons for which a WHSQ inspector could enter a workplace and they have broad powers and functions including:
An inspector may enter a workplace, or a suspected workplace, at any time with or without the consent of the person with management or control. Once at a workplace, the inspector may require a person to provide information or to access a document, or to answer questions. Where a person is asked to assist an inspector, they must not without reasonable causes, refuse or fail to do so.
Inspectors also have a broad range of powers, including to seize evidence or apply to the Magistrates Court for a search warrant.
Inspectors are able to take a number of steps towards enforcement apart from bringing a prosecution, these include:
Following an investigation, WHSQ might determine that a prosecution should be brought and refer the matter to the OWSHP.
The Act provides for three different categories of offences for which prosecution can be brought. Those are:
Since 2017, the Act has also provided for the offence of industrial manslaughter. This is where a person conducting business or a senior officer’s negligent conduct causes the death of a worker. The maximum penalty in those circumstances is 20 years imprisonment for an individual, or a $10,000,000 fine for a body corporate.
Both category 1 and industrial manslaughter offences are charges which must proceed on an indictment to the District Court. All other charges can be finalised in the Magistrates Court.
There are also a range of other offences which might result in a prosecution and which carry their own penalties.
The following table from the Guide helpfully sets out the maximum penalties for breaches of the above offences.
| CORPORATION | INDIVIDUAL AS PCBU OR OFFICER | INDIVIDUAL AS WORKER OR OTHER | |
| INDUSTRIAL MANSLAUGHTER | $10M for a body corporate | 20 years imprisonment for an individual | N/A |
| CATEGORY 1 | $3 million | $600,000 or 5 years jail | $300,000 or 5 years jail |
| CATEGORY 2 | $1.5 million | $300,000. | $150,000. |
| CATEGORY 3 | $500,000. | $100,000. | $50,000. |
Sentences for breaches of the above offences are similar to those brought in criminal charges and can include penalties ranging from fines to imprisonment. There are also a number of alternative penalty options which can be imposed by the Court, these include:
If you are found guilty after trial or decide to plead guilty to an offence against the WHS Act, the Work Health and Safety Prosecutor will publish a summary of the outcome of the sentence on their website.
While the publishing of these summaries cannot be avoided, the defendants’ details can be removed if it is the case a conviction is not recorded against them. For this reason, it is important you that have legal representation as our team can assist with mitigating your sentence and providing submissions as to why a conviction should not be recorded.
If you or your business has been the subject of an investigation by Work Health and Safety Queensland – or if proceedings against you have been brought – the consequences for you and your business can be severe. It is therefore crucial that you seek immediate legal advice from lawyers experienced in this area.
Aitken Whyte Lawyers have experience acting for both individuals and companies charged with breaches under the Work Health and Safety Framework (see for example: https://www.owhsp.qld.gov.au/court-report/meatworks-fined-70000-after-unguarded-bandsaw-blade-causes-partial-amputation-young-workers-finger; and https://www.owhsp.qld.gov.au/court-report/worker-fined-3000-forklift-incident-portside).
If you or your company need urgent legal advice, we highly recommend that you contact Aitken Whyte Lawyers at the earliest possible stage.
Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
