In the wake of the fatalities at Dreamworld and Eagle Farm in 2016 and in line with the recommendations of the Best Practice Review, there has been a significant increase in compliance monitoring and enforcement action by safety regulators in Queensland. This has also been the case in other States.
This shift has resulted in more of an emphasis on 'hard' compliance measures (such as notices and other action).
In Queensland, this increase in regulatory activity has been driven by the establishment of the Office of the Work Health and Safety Queensland prosecutor in March 2019 and the appointment of Aaron Guilfoyle as the WHS prosecutor.
Until recently, it was rare for a statutory notice or request to provide information or documents to be issued directly to senior management (including directors and board members) or the State. However, this is now not uncommon and no organisation is immune.
The notices are issued to capture the attention of the most senior members of an organisation, who have the greatest capacity to influence the safety culture within an organisation. They may include those who hold officer responsibilities under the relevant safety legislation.
As a result, now is a sensible time to review safety governance structures to ensure they are effective in supporting officers to discharge their due diligence obligations.
Notices to provide information and documents
Regulators may request information or documents which are relevant to a possible contravention of the relevant Act, or which demonstrate the monitoring or enforcement of compliance with the relevant Act.
There have been a number of examples of statutory notices being issued which require information about how directors are complying with their due diligence obligations or how other persons are complying with their obligations under the relevant legislation. There have also been examples of requests for information. These requests can be onerous to comply with from an administrative perspective.
While regulators have broad powers to request information, it is important to carefully read and consider a statutory notice on receipt to determine whether any aspect of the notice can or should be legitimately challenged. Information obtained by regulators through these requests may lead to further enforcement activity (such as the issue of improvement notices) so it is important to ensure the notice is a valid one.
Improvement notices
Post Dreamworld, Eagle Farm, and the subsequent Best Practice Review, there has been a significant increase in the number of improvement notices issued by safety regulators.
As with statutory notices to produce information and documents, improvement and prohibition notices should be reviewed carefully to determine whether the notice is valid.
If left unchallenged, these notices could form part of an organisation's safety 'record', which may become relevant if in the future there is a breach of the safety legislation for which a Court is determining a penalty.
Next steps for those issues with a statutory notice
Most industries have already felt the impact of the change in regulatory approach and have witnessed the distinct shift in the approach of the Inspectorate.
If your organisation is issued with a statutory notice, we recommend you seek legal advice.
Where there are legitimate grounds to challenge a statutory notice, these should be raised before the time for compliance expires.
All industries are affected by the increased enforcement activity that it currently being undertaken by the regulator. However, there has been a specific focus on the high risk industries which include mining, construction and health.
We have assisted a number of clients in challenging notices issued to them and in responding to requests to provide information. Please get in touch with a member of our Workplace team if you would like more information on this topic.
