During 2018 Workplace Health and Safety Queensland formed the Stone Benchtop Audit Program and introduced general warnings regarding, specifically, silicosis. This program was in response to WorkCover claims made by several Queensland based workers concerning silicosis.
The WHS Act provides, in part as follows:
19 Primary duty of care
- A person conducting business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
- workers engaged, or caused to be engaged by the person; and
- workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
- A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
32 Failure to comply with health and safety duty – category 2
A person commits a category 2 offence if—
- the person has a health and safety duty; and
- the person fails to comply with that duty; and
- the failure exposes an individual to a risk of death or serious injury or
Maximum penalty – …
During 2019 both the Office of Industrial Relations, the Regulator from Workplace Health and Safety Queensland and the Prosecutor from the Office of the Work Health and Safety Prosecutor were hard at work in their respective offices preparing to sanction certain employers in the stone benchtop industry for their alleged breaches of the Work Health and Safety Act 2011 (WHS Act).
Under sections 154 and 155(2) of the WHS Act, inspectors are empowered to issue notices requiring employers to give (within three business days) information and produce documents to the Regulator to assist with the enforcement of the WHS Act. Failure to comply with the Notice can result in a substantial fine.
The recent case of Guilfoyle v Niepe Constructions considered these matters.
In Niepe Constructions, the complaint and summons were struck out, without liberty to replead the case, due to the case commencing outside the prescribed limitation period. The complaint was pleaded briefly and supported by another document, described as a Statement of Facts. Magistrate G. Lee said, after referring to a decision by the President of the Industrial Court, at :
… Essentially, a defendant is entitled to be told not only the legal nature of the offence but also of the particular act, matter or thing alleged; a charge must “at least” condescend identifying the essential factual ingredients; and that to be competent, a complaint should contain sufficient identification of the acts or omissions the subject of the charge.
Magistrate G. Lee found at  that the Prosecutor from the Office of the Work Health and Safety had adopted a materially different format to his Complaint and Summons than that used previously because now it merely recited the provisions of the statute and provided no factual ingredients except for date and place.
We understand an appeal of the decision in Guilfoyle v Niepe Constructions is underway.