Changes to the Queensland Work Health and Safety Act

On 22 August 2017, the Work Health and Safety and Other Legislation Amendment Bill 2017 (Qld) (the Bill) was introduced into Queensland Parliament. 

The Bill makes a number of key changes to the Work Health and Safety Act 2011 (Qld) (WHS Act) and related legislation, including:

• creating an industrial manslaughter offence;
• establishing an independent statutory office for work health and safety (WHS) prosecutions;
• prohibiting enforceable undertakings being accepted for any contraventions of the WHS Act involving a fatality; and
• reintroducing the role of Workplace Health and Safety Officers.

The changes in the Bill implement some of the 58 recommendations made by the Best Practice Review of Workplace Health and Safety Queensland (the Review) that was commissioned in 2016 in response to the incidents at Dreamworld and an Eagle Farm worksite which resulted in six fatalities.  The Review's final report was publicly released on the same day the Bill was introduced.

Best Practice Review of Workplace Health and Safety Queensland

Under its terms of reference, the Review considered the effectiveness of Workplace Health and Safety Queensland (WHSQ) in light of contemporary regulatory practice. 

The final report for the Review was provided to the Government on 3 July 2017, with findings and recommendations focussing on both the work health and safety legislation and the way WHSQ performs its role.  Some key findings of the Review include that:

• some of the changes to the Queensland work health and safety laws as a result of the national harmonisation process were not positive (including repealing existing arrangements that had received broad support from stakeholders);
• there is a need to improve the human capital, systems and processes of WHSQ, including by requiring a greater level of inspector visibility in workplaces and increased enforcement activity;
• WHSQ has placed insufficient emphasis on 'hard' compliance and enforcement which requires re-balancing, to ensure an appropriate balance between 'directing compliance' and 'encouraging and assisting compliance'; and
• there is a need to ensure the reality and perception of WHSQ's independence is maintained and delineation of functions is clear (for example, by structural separation of WHSQ's operations into three streams – prosecutions and investigations, inspectorate and capacity building and engagement).

What does the Bill do?

The Government has indicated that it will accept all 58 of the Review's recommendations either fully, or in part.

The Bill is the first step toward this and implements some of the key recommendations made by the Review, including proposed legislative amendments to the WHS Act, the Electrical Safety Act 2002 (ES Act) and the Safety in Recreational Water Activities Act 2011 (SRWA Act).

New offence of industrial manslaughter

A headline change of the Bill is the introduction of a new offence of 'industrial manslaughter' into the WHS Act, the ES Act and the SRWA Act.  If the Bill is passed, Queensland will become only the second Australian jurisdiction with a specific industrial manslaughter-type offence (the ACT has a similar provision).

The creation of the offence of industrial manslaughter was the most significant of the recommendations made by the Review.  The Review concluded that despite the polarised views of stakeholders about the necessity for the offence, a specific offence of industrial manslaughter is needed:

• to deal with failures causing fatalities;
• to deal with the expectations of the public and affected families when a fatality occurs; and
• to provide a deterrent effect.

The Bill creates two new offences.  An offence for industrial manslaughter may be committed by a person conducting a business or undertaking (PCBU) (a corporate offence) or by a senior officer of a PCBU. 

A senior officer is defined as an executive officer of a corporation or the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part of the person's functions.  Use of the term 'executive officer' rather than 'officer' is a move back to the terminology used prior to harmonisation and arguably applies to a wider category of individuals in management roles than the term 'officer'. 

Whilst volunteers are an exception to the new offence provisions under the Bill, the Bill specifies that a senior officer of an unincorporated association (other than a volunteer) may commit an offence. 

A PCBU or senior officer commits an industrial manslaughter offence if:

• a worker dies in the course of carrying out work for the business or undertaking, or is injured and later dies; and
• the person’s conduct causes the death of the worker (a person's conduct causes death if it substantially contributes to the death); and
• the person is negligent about causing the death of the worker, or another worker by the conduct.

The Bill provides that this new offence is a crime and the existing standard of proof for criminal negligence (proof beyond reasonable doubt) will apply.  The maximum penalty is 20 years imprisonment for an individual or 100,000 penalty units for a body corporate (up to a maximum fine of $10,000,000).  

These penalties are significantly higher than the current maximum WHS penalties, which, for a Category 1 (reckless conduct) offence, are $3,000,000 and/or five years imprisonment.  Significantly, the provisions of the WHS Act relating to the imputation of an individual's conduct to a corporation mean that corporations may be attributed with criminal liability in instances involving serious WHS breaches.

The introduction of this offence has been criticised by some stakeholders as unnecessary, given the existence of a Category 1 offence in the WHS Act which is currently also prosecuted as a crime and the Queensland Criminal Code.

Establishment of independent statutory office for work health and safety prosecutions

The Bill establishes an independent statutory office for WHS prosecutions.  The statutory office will be headed by a WHS Prosecutor appointed by the Governor-in-Council for a five year renewable term. 

The Bill transfers the current functions of the WHSQ Regulator to conduct and defend court or tribunal proceedings under the WHS Act to the WHS Prosecutor.  In adopting this recommendation of the Review, the Bill also enables the WHS Prosecutor to advise the Regulator on matters relating to the WHS Act and exercise all functions in relation to WHS prosecutions.  However, the Bill preserves the current procedure requiring the WHS Prosecutor to transfer indictable offences (Category 1 and industrial manslaughter) to the Director of Public Prosecutions (DPP) for decision and action.

In deciding whether to initiate a prosecution under the WHS Act, the Bill requires the WHS Prosecutor to follow Guidelines issued by the DPP.

Issue resolution amendments

The Bill transfers jurisdiction for the review of particular decisions made by WHSQ inspectors (reviewable decisions under Schedule 2A of the WHS Act) from the Queensland Civil and Administrative Tribunal (QCAT) to the Queensland Industrial Relations Commission (QIRC).  In addition, the Bill expands the jurisdiction of the QIRC to hear and determine the following categories of disputes:

• a dispute in relation to the provision of information by an employer to a health and safety representative (HSR);
• a dispute in relation to a request by a HSR for assistance;
• a dispute in relation to a WHS issue resolution process; and
• a dispute in relation to cease work matters.

Restoring the status of codes of practice

The Bill clarifies that safety measures in WHS Codes of Practice must be followed unless the duty holder can demonstrate they are providing a standard of health and safety that is equivalent to, or higher than, the standard required under Code.  This restores the previous requirements in the repealed Workplace Health and Safety Act 1995 (Qld) (WHS Act 1995) and addresses concerns raised about the status of Codes post harmonisation.

Restricting availability of enforceable undertakings

The Bill expands the prohibition on accepting a WHS undertaking for a contravention that is a Category 1 offence to include contraventions that are:

• a Category 2 offence resulting in an individual's death; or
• an offence under the new Part 2A relating to industrial manslaughter.

This extended prohibition will apply to contraventions under the WHS Act, as well as to the mirror contraventions under the ES Act and SRWA Act.

In practice, enforceable undertakings have very rarely been granted where a fatality has occurred (and this was certainly the approach taken under the repealed WHS Act 1995) but the Bill will remove any discretion around the issue going forward.

Reintroducing Workplace Health and Safety Officers for PCBUs

The role of Workplace Health and Safety Officer (WHSO) has been reintroduced by the Bill, but unlike the position prior to harmonisation, it will not be a mandatory requirement for PCBUs.  The discretion given to PCBUs under the Bill is intended to allow it to assess the utility and appropriateness of engaging a WHSO in the workplace.

As was the case under the WHS Act 1995, the general functions of a WHSO will include:

• notifying the PCBU about WHS matters;
• identifying hazards and risks to health and safety in the workplace and reporting on them to the PCBU;
• undertaking annual assessments of risks to health and safety arising from the work carried out by the PCBU and reporting on them to the PCBU;
• notifying the PCBU about a WHS incident or immediate risks to health and safety;
• investigating incidents; and
• establishing appropriate WHS training programs within the PCBU.

The appointment will not affect any duties or obligations owed by a PCBU under the WHS Act, but the Bill also provides that the appointment of a WHSO can be used as evidence that a PCBU has taken steps to comply with its duties under the WHS Act.  

Increasing support for Health and Safety Representatives

The Bill amends the existing framework relating to Health and Safety Representatives (HSR) to require that all HSRs undergo training for the role within six months of being elected.  In addition, the Bill requires further mandatory refresher training to be undertaken at three year intervals.

The amendments also introduce additional obligations on PCBUs regarding the exchange of information, including requiring PCBUs to provide the regulator with a copy of all provisional improvement notices issued by HSRs and a list of all HSRs (including deputy HSRs) for each work group at the PCBU.

Further amendments

In response to concerns regarding the potential limitations of the current wording of s 171 of the WHS Act, the Bill amends s 171 to clarify the scope and availability of an inspector's powers under this section.

The revisions clarify that an inspector who enters a workplace or has entered a workplace within the last 30 days may exercise a power under the section and the powers under the section apply to documents located at any place, including but not limited to the workplace.

The Bill also revises the language of the exceptions to a PCBU's obligations under s 70(1) of the WHS Act to clarify that a PCBU may only refuse access to information if that information is confidential commercial information.  Confidential commercial information is defined as information about a trade secret, financial information or information having a commercial value that would cause significant financial harm to the PCBU if disclosed.

Additionally, the Bill empowers an inspector who is asked to assist in relation to a dispute over a right of entry to determine whether the permit holder has a valid right of entry and to direct a PCBU to allow the permit holder to enter the workplace.  Failure to comply with a direction given in these circumstances attracts a maximum penalty of 100 penalty units.

Other significant features of the Review Recommendations

There are a number of other important recommendations made by the Review which are not specifically addressed by the Bill.  Some of the more significant recommendations from the Review are as follows: 

Public safety – amusement devices

Following the fatalities which occurred at Dreamworld last year, a key focus of the Review was on the level of risk to the general public from amusement rides.

Amendments to the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation) were recommended, to require that:

• mandatory major inspections of amusement devices, by competent persons, are conducted;
• competent persons are nominated to operate specified amusement devices;
• details of statutory notices are recorded in the amusement device logbook and made available to the competent person inspecting the amusement device;
• there is a new level of competency for inspection and operation of specified amusement devices (to be determined by WHSQ in consultation with stakeholders); and
• for operators and facilities whose amusement devices collectively present a risk, a Safety Case (including a WHS management system) should be prepared and a licensing regime applied (with the level of licensing based on the level of risk).The Government has indicated that it will begin working with industry to implement new arrangements which will be phased in, commencing in large theme parks from 1 December 2017.

The Review also recommended that the Government consider establishing a Public Safety Ombudsman, to cover areas where WHS regulators typically do not have jurisdiction (for example, a child injured playing on playground equipment at a council park).  

Payment of WHS penalties by insurance companies

Under the current WHS laws in Queensland, there is no express provision prohibiting contracts being entered into for liability insurance against penalties imposed for breaches of the WHS Act.

The Review recommended amendments to safety legislation to expressly prohibit insurance contracts being entered into which cover the cost of WHS penalties and fines. 

Watch this space as to whether the Government acts on this particular recommendation. 

Reverse onus of proof

Under the WHS Act, the legal onus of proof rests with the prosecution, meaning the prosecution must prove each element of an offence (although some provisions expressly place the evidential onus on an accused).  The Review found that restoring the reverse onus of proof to the defendant (as it existed under the WHS Act 1995) would be an aid to compliance and enforcement and would ensure the positive obligations of PCBUs to maintain a safe system of work.

However, the Review stopped short of recommending this change occur now given the issue of onus of proof is a core part of the model WHS laws.  Instead, it recommended any change to the onus be considered as part of the 2018 national review.

Right of entry permit requirements for persons providing assistance to HSRs

The decision in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89, held that where a state WHS law allows a HSR to invite a union official on to site to assist them, the union official must personally hold a valid federal right of entry permit under the Fair Work Act 2009 (Cth).  

The Review found that this decision has significant potential to disturb existing arrangements, particularly in respect of requests for assistance. 

It recommended the Government consider amending the WHS Act to ensure the right to seek assistance is unaffected by permits. 

What do the changes mean for businesses?

The Review and the resulting changes in the Bill signal a new approach to the way in which WHS will be regulated in Queensland.  In many respects the changes are a move away from some of the key concepts which formed the basis of the harmonised 'model' safety legislation adopted in most states and territories. 

While the introduction of an offence of industrial manslaughter offence is a very significant one, the impact most likely to be felt by business in the short term is the increased focus and resources on enforcement action by the safety regulator.   Now more than ever is the time to ensure that your business is complying with its WHS obligations and that everyone within the business (particularly those in management roles) understand and comply with their safety obligations.    

While many companies have retained the WHSO role post harmonisation, the changes in the Bill provide an incentive to have a WHSO in place because it can be used as evidence of compliance with the WHS Act.  If the Bill is passed, existing WHSOs will need to obtain a certificate of authority from the regulator to enable the role to be used as evidence.  If you do not have a WHSO, consider whether it might be useful for your business.  

The proposal in the Review to prohibit insurance for fines and penalties under the WHS Act is controversial given that many insurance policies do provide this type of cover.  However, interestingly the recommendation has not formed part of the Bill. 

It is a case of 'watch this space' in relation to whether the Bill will be passed in its current form and whether the Government will introduce further legislation to reflect some of the other key recommendations in the Review.

If you have any concerns about any aspect of the Bill or how it will impact your business, any interested party  is invited to make a submission to the Finance and Administration Committee by 14 September 2017. We will be monitoring this process and can assist in preparing a submission tailored to your business if required.  The Committee is due to report to Parliament by 5 October 2017.