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State Parliament pushes for changes to WHS legislation

August 26, 2017

NRA Legal

A new Bill introduced to Queensland State Parliament recently proposes some significant changes to Queensland’s Work Health and Safety Act 2011 (‘WHS Act)’, including a new, criminal offence for industrial manslaughter, carrying up to 20 years’ imprisonment for individuals and $12,615,000 for bodies corporate.

The Bill adopts some of the 58 recommendations made in an independent review that was commissioned last year following a number of fatalities at Dreamworld and Eagle Farm Racecourse. The review identified several holes in public safety regulations and has prompted the Queensland government to act quickly.

Industrial Manslaughter

Fundamentally, the criminal offence for industrial manslaughter will apply to persons conducting a business or undertaking (‘PCBU’) as well as ‘senior officers’, which is defined to mean those with a high level of executive decision-making power. It also requires an element of negligence on the part of the offender – as opposed to recklessness currently addressed by category 1 offences under the WHS Act – and conduct which substantially contributes to death.

Independent Statutory Office

In addition to creating new offences, the Bill proposes to establish an independent statutory office for work health and safety prosecutions. A WHS Prosecutor will be appointed for a five year renewable term and will adopt the power to conduct and defend court or tribunal proceedings currently given to the WHS Queensland Regulator. Indictable offences will continue to transfer to the Director of Public Prosecutions for decision and action.

Review of Decisions by WHSQ Inspectors

Further amendments include the new power for WHSQ Inspectors to make determinations or directions and the transfer of jurisdiction to review their decisions from the Queensland Civil and Administration Tribunal (‘QCAT’) to the Queensland Industrial Relations Commission (‘QIRC’). A failure comply with directions (such as the direction to allow a permit holder to enter the workplace) may result in a penalty against the individual of up to $12,615.

If the Bill is passed, the QIRC will become the primary body for disputes. It will be given new powers to hear and determine – in any way it thinks fit – disputes between a PCBU’s, workers, health and safety representatives and relevant unions. Where the QIRC becomes involved, internal reviews of the business will cease and the decision of a WHSQ inspector will remain on foot until further notice.

Mandatory Compliance with Codes of Practice

Duty holders will be required to comply with relevant Codes of Practice, which provide practical guidance on how to achieve compliance with WHS laws, unless they can show that they go above and beyond the standard prescribed in these documents. This reinstates a previous requirement of the repealed Workplace Health and Safety Act 1995 (Qld).

Further Changes

Other legislative changes proposed by the Bill include:

  • Prohibiting enforceable undertakings in response to contraventions of the industrial manslaughter provisions and category 2 offences resulting in a person’s death;
  • Reintroducing the non-mandatory option of appointing WHS Officers in the workplace with general functions such as identifying hazards and risks, undertaking annual assessments, investigating incidents and establishing appropriate training programs;
  • Mandating appropriate training for Health and Safety Representatives within 6 months of being elected and refresher courses every 3 years;
  • Clarifying an inspector’s powers under s 171 of the WHS Act; and
  • Clarifying a PCBU’s right to refuse access to confidential commercial information under s 70 of the WHS Act.

What does this mean for my business?

The proposed Bill indicates a shift towards the pre-harmonised model safety legislation adopted in Queensland. It provides for a new method of regulation and more safeguards to prevent and deter fatalities from occurring within the workplace.

From a practical perspective, retail businesses of small to medium size are not likely to encounter charges of industrial manslaughter. However, the Bill places an increased focus on enforcement action and employers are given opportunity to ensure compliance with their WHS obligations. Certainly, the appointment of a WHS Officer is one favourable outcome which may be used as evidence of taking reasonable steps to comply with the WHS Act.  

Interested parties with concerns about this Bill are invited and encouraged to make submissions to the Finance and Administration Committee by 14 September 2017.

As always, the NRA will keep you updated on the progress of the Bill and can assist in preparing submissions tailored to your business. For further more information, call the NRA today on 1800 RETAIL (1800 738 245).

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