LEIGH’S CORNER
Article No.38 –
THE WORK HEALTH & SAFETY AND OTHER LEGISLATION AMENDMENTS ACT (QLD) 2017
THE IMPACT ON YOU AND YOUR QUEENSLAND BUSINESS
In August 2017 the Work Health & Safety and Other Legislation Amendments Bill (Bill) was tabled in the Queensland Parliament. The reason given
for this Bill arose from a review on concerns of how safety is regarded as well as concerns on the effectiveness of the Work Health & Safety
Act 2011.
This Bill was essentially a reaction to fatalities at Dreamworld and Eagle Farm Racecourse – in particular, concerns about the regulation of public
safety and the effectiveness of the current WHS Legislation.
On the 12th October 2017 this Bill passed and became the Work Health & Safety and Other Legislation Amendments Act (QLD) 2017 (Act).
This amends the Work Health & Safety Act 2011 (WHS Act) – the Electrical Safety Act 2002 (ES Act) – and the Safety in Recreational Waters Act
2011 (SRWA Act).
KEY CHANGES – WHO DOES IT AFFECT AND HOW?
The provisions of the Act include:
Creates a new criminal offence
– Industrial Manslaughter- It was found that a specific offence was needed to deal with WHS failures causing fatalities, as well as dealing with public expectations
following a fatality and to provide a deterrent effect - Establishes an independent
office for WHS Prosecutions - Places restriction on the
availability of enforceable undertakings - Reintroducing the role of
the Work Health & Safety Officer - Restores the status of Codes
of Practice - Increases support for Health
& Safety Representatives. - COMMENCEMENT OF AMENDMENTS
- NEW CRIMINAL OFFENCE –INDUSTRIAL MANSLAUGHTER
- An industrial manslaughter offence is not only an individual offence (such as a senior officer of a PCBU) but also can be brought against a corporation.
The amendments relating to industrial manslaughter will commence upon assent, which is expected to happen in the next week. - A PCBU or senior officer commits an offence if:
A worker dies in the course
of carrying out his duties (or is injured, but later dies)- The PCBU / Senior Officer’s
conduct causes, or substantially contributes, to the death of the worker - This person is negligent
in respect of causing the death of the worker - The exceptions are Volunteers, but NOT senior officers of unincorporated associations. Individuals acting with corporate authority
can be criminally liable if that person’s conduct substantially contributes to a fatality. - Prior to the passing of the Bill an amendment was made to expressly note that Section 23 of the Criminal Code does not apply as
a defence to industrial manslaughter. Section 23 of the Criminal Code provides that a person cannot be criminally liable if there was no intention
or motive. All that is required for a charge of industrial manslaughter to be brought is that the person’s conduct causes the death and that
the person is negligent about causing the death of the worker by that conduct. - MAXIMUM PENALTY – 20 YEARS IMPRISONMENT (INDIVIDUAL) – UP TO $10 MILLION IN PENALTY (CORPORATE BODY)
INDEPENDENT STATUTORY OFFICE FOR WHS PROSECUTIONS
The new statutory WHS prosecutions office will operate like the DPP – headed by a Prosecutor – who must follow DPP guidelines when deciding when to
initiate prosecution.
Inspectors may still take proceedings for Category 3 offences with the authority of the Prosecutor. The current referral process to the DPP for indictable
offences remains in place.
The functions of the WHS Prosecution Office include:
- Conducting and defending
proceedings under the Act before a court or tribunal - Advising WHSQ on matters
relating to the Act - Any other function specified
under the Act or other Act
Impact of Change:
- There are concerns that there
may no longer be any express obligation to consider whether there is a reasonable prospect of conviction in deciding to prosecute - It seems to be a significant
move away from national Harmonisation of Compliance and Enforcement – this Act relates to Qld only - The independent Prosecution
Office may assist in mitigating impact on strained inspector relationships. - REINTRODUCING THE ROLE OF THE WORKPLACE HEALTH & SAFETY OFFICER
- Commencement Date – 1 July 2018
- The reintroduction of the role of Workplace Health & Safety Officers (WHSO) is not mandatory. A PCBU may appoint a person who must hold a Certificate
of Authority issued by Work Health & Safety Qld. - The appointment of a WHSO is considered in assessing evidence of compliance with the Act by a PCBU. The Bill does not contain other requirements
that a WHSO taking on the role must also do. - Impact of Change:
- It is up to a PCBU to assess
the utility or appropriateness of appointing a WHSO - An appointed WHSO does not
bear liability – the role of WHSO is designed to assist with compliance with WHS legislation - The appointment of a PCBU
does not affect the duties and obligations of a PCBU under WHS obligations - Appointment may be used as
evidence of compliance under WHS obligations
RESTRICTING THE AVAILABILITY OF ENFORCEABLE UNDERTAKINGS (EU)
This Act now expands the prohibition on accepting enforceable undertakings for a Category 1 offence – the exclusion applies to all officers involved
in a fatality. Prior to harmonisation, WHSQ made it clear that an EU would not be accepted in the case of a fatality. However, the Act removes
any discretion or ambiguity on this issue.
Review of the changes makes it seem unnecessary – previously, WHSQ already had the discretion to reject an EU application.
RESTORING THE STATUS OF CODES OF PRACTICE – 1 July 2018
Under this Act, the Codes of Practice will operate as a minimum standard – to be reviewed every 5 years to ensure the content remains relevant. Codes
of Practice provide a good guide but not the detail required to ensure compliance.
Safety measures contained in Codes of Practice must be followed unless the PCBU can demonstrate they are providing a standard of health and safety
that is at least equivalent to the standards under the relevant Code.
This Act clarifies the status of Codes of Practice by restoring the previous requirements from the 1995 WHS Act. The Codes provide clear enforcement
action by inspectors where a minimum standard has failed to be reached.
However, Codes may also be used as evidence that a PCBU has complied with their safety obligations.
HEALTH & SAFETY REPRESENTATIVES – 1 July 2018
As a result of the review the Act’s amendments include:
- Reinstating repealed provisions requiring PCBU to provide WHSQ with list of HSR and deputy HSRs
- Mandating training for HSTs within six months of being elected with refresher training every 3 years
- Requiring PCBU to provide WHSQ with a copy of all PINs issued by HSR
Currently, training for HSRs is discretionary – mandatory training will impose increased financial and practical obligations on PCBUs. There will be
greater regulatory burdens imposed on a PCBU regarding exchange of information.
It is common for HSRs to be associated with unions – these changes may result in more activity which may be difficult to manage.
RIGHT OF ENTRY
Amendment of S171 – clarifies scope / availability of inspector’s powers on entering a workplace or reviewing a document. An inspector can enter and
request documents, even from head office location. The inspector does not have to be on site at Head Office to effectively request such documents.
Revises S70 (1) – a PCBU may only refuse access to information if such information “confidential commercial information”.
Right of Entry – empowers inspectors that have been asked to assist in right of entry disputes to determine whether permit holder has a valid right
of entry. In these circumstances an inspector can direct a PCBU to allow permit holder to enter premises. Where State WHS law allows a HSR to invite
a union official onsite to assist them, the union official must hold a valid right of entry permit.
OTHER AMENDMENTS IN THE ACT – DATE YET TO BE FIXED
- The transfer of jurisdiction
for issue resolution from the Queensland Civil and Administrative Tribunal (QCAT) to the Queensland Industrial Relations Commission (QIRC) - Establishing the office of
the WHS Prosecutor - Expanding the powers of inspectors
to assist in resolving disputes
NO INDUSTRIAL MANSLAUGHTER FOR THE MINING INDUSTRY AT THIS STAGE
Whilst the Government is committed to protecting workers in mines, quarries, on oil and gas rigs and people working with explosives, it will not move
to introduce further amendments to the mining industry until consultation occurs with the resources industry.
Please note that this is general advice for information only and any application of legislation and/or Industrial Relations or contractual requirements
may require professional advice to suit your individual circumstances. If you have question for Leigh’s team send us an email …….
[email protected]