26 Oct 2017
Significant changes to QLD WHS laws to commence shortly – are you ready?
By Shae McCartney and Kelly Farrar
Sweeping changes are coming to Queensland's work health and safety laws after a best practice review of the laws was conducted in response to the Dreamworld and Eagle Farm incidents. It is important to understand the impending changes as a number will impact the day to day safety operations of businesses that operate in Queensland.
An Act which was passed by Parliament on 12 October 2017 and received Royal Assent yesterday, the Work Health and Safety and Other Legislation Amendment Act 2017, introduces several changes to Queensland's WHS laws that will impact day to day safety operations in business. These changes are the legislative response to the Best Practice Review Workplace Health and Safety Queensland.
The introduction of the Industrial Manslaughter offence is one of the most significant changes. The offence relates to where a worker has died as a result of a PCBU's negligent conduct. PCBU's charged under this provision will not be entitled to rely on the "accident" defence in section 23 of the Criminal Code and successful prosecution can result in up to 20 years' imprisonment for an individual and a penalty of $10 million for a corporation.
These provisions will not apply retrospectively.
Other changes made by the new Act include:
- expansion of the Queensland Industrial Relations Commission's (QIRC) jurisdiction to hear and determine WHS disputes and Inspectors powers in relation to right to entry disputes;
- changes to compliance obligations in relation to Codes of Practice (COP);
- changes to the roles of Health and Safety Representatives (HSR) including training obligations;
- establishment of an independent statutory office for work health and safety prosecutions (WHS Prosecutor);
- reintroduction of the ability for a PCBU to appoint a work health and safety officer (WHSO).
Dispute resolution changes
The changes in relation to dispute resolution processes relate to disputes regarding:
- the provision of information by an employer to a HSR;
- a request by a HSR for assistance;
- the WHS issue resolution process; and
- cease work matters.
The new process means that where assistance has been requested from the regulator to resolve the dispute and the dispute remains unresolved (for at least 24 hours) a party to the dispute can give notice to the QIRC and request the commission deal with the dispute. The QIRC can then deal with the matter as it sees fit, including making a determination which carries a penalty if not complied with.
The new Act also gives Inspectors the power to determine a right to entry dispute and allows an Inspector to grant immediate access to a site where the Inspector decides the right to entry exists.
These provisions will have a real impact on businesses, with disputes being able to be put before the QIRC very quickly. The changes also mean that once a dispute is notified to the QIRC, the relevant union can elect to become involved in the resolution of the dispute.
Code of Practice compliance changes
Once commenced, COP compliance requirements will revert back to how they existed under the 1995 WHS laws. This means the COPs must be complied with, or where a business chooses to conduct works in a manner different to that prescribed in the COP, they must be able to show that the standard to which they are operating meets or exceeds the relevant COP.
The changes also include a provision that makes COPs expire five years after they are approved to ensure they are kept current.
Practically this means that businesses will need to review their operations against all of the relevant COPs that apply to the work being done and ensure compliance. Of note is the fact that many COPs include reference to Australian Standards which means compliance with the COP includes compliance with the Australian Standard.
HSR role changes
The Act has introduced a number of changes to the HSR role that businesses need to be aware of and plan for. These include:
- the requirement to provide the regulator with a list of HSRs;
- the introduction of mandatory training for HSRs; and
- the requirement to forward to the regulator a copy of all PINs issued by HSRs.
Most significant of these amendments is the requirement to train all HSRs within 6 months of them being appointed. The training must be as prescribed in the regulations and the Act also contains the amendments to the regulations in respect of this training.
The training that must be undertaken is a five-day course (as approved by the regulator) with refresher training every three years. An employer must allow a HSR time off to attend this training and pay for the training and any reasonable costs associated with this. This change will impact businesses financially as even existing HSRs will need to be trained once the legislation is introduced. It is prudent to begin to plan how this training will be managed early.
The Act introduces a statutory office to handle WHS prosecutions. The Act sets out the powers and functions of this role and deals with the appointment of the prosecutor, the office and staff. It also sets out the required information exchanges with the regulator.
This change removes the prosecutorial role from the regulator, although category 1 offences and industrial manslaughter offences will still be referred to the DPP.
Reintroduction of WHSOs
The Act inserts a new Part 5A which reintroduces the role of WHSO. The provisions set out the functions and obligations of a person appointed in the role of WHSO. The provisions also provide immunity for WHSOs where they act in good faith.
Important for business is the inclusion of a provision which means that engagement of a WHSO can be used as evidence that steps have been taken to manage health and safety risks.
A number of the new provisions, including the introduction of the Industrial Manslaughter charge and the obligations on PCBUs to provide a list of HSR's and a copy of any provisional notice received to the regulator, commenced yesterday, on the date of assent. The remaining amendments to the WHS Act will commence on either the 18th of July 2018 or on a date to be fixed by proclamation.
What you need to do:
The new legislation introduces some significant changes to the way WHS will be monitored and enforced. Before these provisions come into effect, there are three things every PCBU should be doing:
- identifying any existing Codes of Practice which will apply to the PCBU and assessing current compliance levels;
- organising training programs for current and future HSR's to ensure PCBU obligations will be met; and
- consideration of whether appointing a WHSO under the new voluntary scheme would be useful given the evidentiary value it can provide.