‘Just’ complying not enough under new safety laws

Safety compliance and precautionary whs

The start of a new era for workplace laws

When Dreamworld’s Thunder River Rapids Ride broke down in 2016, one of two south pump drives failed, causing water levels to drop. An empty raft got stuck and a raft carrying four adults and two children collided with it. Tragically, the four adults were killed.

The coroner found Dreamworld management’s ignorance of proper safety standards reflected a ‘systemic failure to ensure the safety of patrons and staff’. He said, ‘there is no evidence Dreamworld ever conducted a proper risk assessment in the 30 years of operation of the ride’ and the safety systems in place were ‘frighteningly unsophisticated’.

Dreamworld owners Ardent Leisure were prosecuted under Queensland Workplace laws.

This case demonstrates how important it is to stay up to date on workplace safety—and to put that knowledge into action. With recent changes to the legislation, and heavy penalties, the consequences could not be more serious.

As a director, understanding and meeting your workplace safety responsibilities could save lives. And save you up to $16.5 million in fines and 25 years in gaol time.

Penalties for failing to look ahead

Dreamworld’s owners had failed to ensure, so far as was reasonably practicable:

  • the provision and maintenance of safe plant and structures
  • the provision and maintenance of safe systems of work
  • the provision of information, training, instruction or supervision that was necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking.

They were charged with three Category 2 breaches against ‘other persons’ and fined $3.6 million.

Although proper record keeping, inspections and maintenance don’t have immediate effects on public lives, providing these things saves lives.

The incident sparked an overhaul to workplace laws to allow for industrial manslaughter.

Under the new industrial manslaughter laws, employers are liable for fines up to $16.5 million and directors can receive 25 years gaol time when their negligence causes the death of a member of the public.

These laws now recognise ‘so far as reasonably practicable’; the critical importance of safety due diligence, not just compliance, to avoid criminal negligence.

Taking the precautionary approach

Richard Robinson is the author of Engineering Due Diligence (a text used by Australian Universities). He says this shift is ‘common law becoming statute law reflecting moral philosophy. Do unto others as you would have done unto you.

‘It goes beyond recklessness—that you knew or made or let it happen. Industrial manslaughter includes negligence—what ought to be known.

‘We have to look at all the precautions and put effort into the critical issues—identify and eliminate or reduce those things that can kill and maim, so far as is reasonably practicable.’

As weather events become more dramatic and the risk of floods higher, it’s this forward thinking on the dams of today that engineers must display to ensure their safety well into the future—and avoid possible conviction.

‘If people living downstream die as a result of a big dam breaking upstream, the dam operator might have said it was designed and operated to recognised standards,’ says Robinson.

‘But if more could reasonably have been done, it ought to have been done. Reliance on standards does not relieve an engineer from a duty to exercise his or her skill and expertise.’

They’re not only then dealing with possible industrial manslaughter, but environmental laws as well, which have also taken the so far as reasonably practicable approach.’

Moving beyond compliance

Gaye Francis, experienced risk and due diligence engineer says compliance is not a defence anymore.

‘We have to look forward. We can’t keep saying “this is what we’ve always done” and get away with it,’ she says.

‘Technology is changing and goalposts change, and we must aspire for best practice. In the example of dam failure, could they have used a radar on the dam wall to find small cracks before they became problematic?

‘And if the dam was there first, there’s an onus on the decision-makers who build the community downstream too.’

Regulatory compliance no longer equals due diligence with safety. If a person is in a position to make decisions, they must learn how to manage their liability.

As Francis says, ‘Keep looking forwards and not backwards for better safety outcomes.’

Join the course

Robinson and Francis are helping engineers understand the new requirements and shift to a precautionary approach to safety in their online course Criminal Manslaughter – How Not To Do It.

Board members, senior decision-makers and technical advisers are particularly encouraged to join. It’s a chance to get to know the changes to the legislation and know your legal duties. Find out more.