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Employment Update – September 2017 – Queensland Government introduces industrial manslaughter Bill

On Tuesday 22 August 2017, the Work Health and Safety and Other Legislation Amendment Bill was introduced to State Parliament.  The Bill follows a review by the Queensland Government to the four fatalities at Dreamworld Theme Park last year, as well as two other work related fatalities at Eagle Farm in Brisbane.

The Review

The review was commissioned to consider:

  • the appropriateness of Workplace Health and Safety Queensland’s (‘WHSQ’) Compliance and Enforcement Policy;
  • the effectiveness of WHSQ’s compliance regime, enforcement activities, and dispute resolution processes;
  • WHSQ’s effectiveness in relation to providing compliance information and promoting work health and safety awareness and education;
  • the appropriateness and effectiveness of the administration of public safety matters by WHSQ; and
  • any further measures that could be taken to discourage unsafe work practices, including the introduction of a new offence of gross negligence causing death as well as increasing existing penalties for work-related deaths and serious injuries.

In terms of the ‘general findings’ of the review, some of the key findings for employers to note were:

  • “Some of the changes to Queensland work health and safety laws that occurred as a result of the national harmonisation process were not positive – a range of existing arrangements that had worked well in Queensland and were broadly supported by stakeholders were repealed.
  • There is a need, expressed in clear terms by both unions and employees for a greater level of visibility in workplaces by inspectors.
  • While considerable improvements have been made, particularly following criticisms from the Queensland Ombudsman, there is an ongoing need to improve the human capital, systems and processes of WHSQ, particularly in relation to the inspectorate, investigations and prosecutions. Unfortunately, implementation of some improved systems around the auditing of enforcement activity resulted in many inspectors becoming reluctant to issue compliance notices, leading to a very large and inappropriate drop off in enforcement activity.
  • In moving to increase its use of engagement, educative and capacity building strategies, WHSQ “overshot” and has placed insufficient emphasis on “hard” compliance and enforcement. This requires a re-balancing. There is an ongoing need to ensure that the balance between “directing compliance” and “encouraging and assisting compliance” is appropriate. This is not a once off exercise, but a matter that requires ongoing monitoring and adjustment.
  • There has been inadequate emphasis placed on the role Health and Safety Representatives play, and an urgent need to develop a program to support them in their statutory role.
  • Partly as a result of budget cuts (in particular in 2012-13) there has been increasing pressure on WHSQ in its role delivering a State-wide program of sufficient breadth and depth. This is a particular challenge in Queensland, given the mix of economic activity and the decentralised population. Reliance on legacy IT systems and machinery of government changes has delayed or restricted the ability of WHSQ to deploy best-practice tools including for on the ground inspectors.”

Note.  The above is not a full list of the findings.

In amongst its 58 recommendations arising from the findings, the Review made 4 ‘general recommendations’, which were:

“1.        WHSQ re-balance its priorities in favour of “hard” compliance work and redeploy some resources away from the capacity building area, with a view to increasing on the ground visibility and activity of the inspectorate.

  1. The inspectorate be structurally separated within WHSQ away from the corporate services, capacity building and engagement work of WHSQ (see also recommendations in relation to prosecutions and investigations).
  2. The Work Health and Safety Act 2011 be amended to require the Work Health and Safety Board to develop, monitor and review a five year strategic plan, and consistent with its role in the WHS Act 2011 provide advice to the Minister on a more regular and systematic basis.
  3. That the Families Forum continue to be actively supported and consulted, including by their involvement in relevant internal working groups and committees. Given the nature of the role, a representative of the Families Forum should be included on the selection committee for staff members of WHSQ allocated to any roles supporting the Forum.”

The findings and the recommendations definitely indicate a view that the WHSQ’s visibility and level of enforcement has not been satisfactory.  This, aligned with the suggested amendments to the Work Health and Safety Act (‘Act’), would suggest that employers should prepare for an increased WHSQ presence in the workplace, and perhaps a harder stance being taken by WHSQ on compliance and enforcement matters.

The Bill

Industrial Manslaughter provisions

The Bill will introduce the offence of ‘industrial manslaughter’ into the Act.  The offence can apply to both persons conducting a business or undertaking (employers) and senior officers of the PCBU.  The offence will be triggered in the following circumstances:

Where —

“(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.”

The maximum penalty for an individual found guilty of an offence under these provisions is 20 years imprisonment, while the maximum penalty for a body corporate is $10,000,000.  The same ‘industrial manslaughter’ provisions will be introduced into the Electrical Safety Act 2002 and the Safety in Recreational Water Activities Act 2011.

Inspectors given determination powers

Significantly for employers, the Bill enables WHSQ inspectors to make on the spot determinations regarding right of entry for workplace health and safety matters.  The typical scenario where this power might arise is where a union representative is denied right of entry.  This new power may alleviate the need for escalation of the matter to a tribunal in such situations.

QIRC given jurisdiction to deal with matters

The Bill also has expanded the power of the Queensland Industrial Relations Commission so that it replaces QCAT as the appropriate jurisdiction for the review of reviewable decisions under the Act.  It also enables the QIRC to hear and determined the following types of disputes:

  • A dispute in relation to the provision of information by an employer to a Health and Safety Representative;
  • A dispute in relation to a request by a Health and Safety Representative for assistance;
  • A dispute in relation to a WHS issue resolution process; and
  • A dispute in relation to ‘cease work’ matters.

Reintroduction of WHSO role

The Bill will also reintroduce the role of a Workplace Health and Safety Officer (‘WHSO’).  Whilst this will be an optional step for a PCBU to take, the Bill contains incentives to introduce a WHSO into the workplace by providing that the “engagement of a WHSO can be used as evidence that steps have been taken to manage health and safety risks”.  The Bill also provides additional support for Health and Safety Representatives.  Currently, appropriately qualified HSR’s can direct work to cease and issue improvement notices.  In addition to this, the Bill:

  • “Reinstate[s] repealed provisions to require a PCBU to provide the regulator with a list of HSRs and deputy HSRs for each work group;
  • Mandate[s] training for HSRs within six months of a HSR being elected to the role, with refresher training to be undertaken at three yearly intervals; and
  • Require[s] a PCBU to forward to the regulator a copy of all PINs issued by HSRs.”

Lessons for employers

The Bill is yet to be passed as legislation, but employers should heed the findings and recommendations made as part of the review, and expect that WHSQ might increase its workplace visibility should this Bill be passed (and may well do so in any event).  A result of increased visibility is potentially increased monitoring of Queensland workplaces, and potentially ‘harder’ stances being taken on matters of non-compliance.

The additional offence relating to industrial manslaughter, and the associated penalties is also a significant incentive for employers to make sure that they are meeting their workplace health and safety obligations to persons in their workplace.

Aitken Legal will endeavour to keep employers updated with developments in relation to this Bill as it progresses through Parliament.

Finally – do you have a Workplace Health and Safety Policy?  If so does it need a review?  If not you should have one drafted and implemented.  A policy is at least a clear step in assessing and education on work health and safety obligations.  Contact Aitken Legal for further assistance.

Chris Campbell, Legal Director