Publications / Work Health and Safety
The Work Health and Safety Bill (Bill) was introduced into the Queensland Parliament by the Minister for Education and Industrial Relations, Cameron Dick at 7.30pm last night (10 May 2011). The Bill is at the second reading stage to be debated in a future sitting of the Parliament and will take effect from 1 January 2012.
The Bill (based on model legislation), is part of the harmonisation of workplace health and safety laws, and while overall it compares well with Queensland’s existing laws, there are some key differences:
- removal of privilege against self-incrimination – one of the major changes is that the current ability to refuse to answer questions as part of an investigation on the grounds of self-incrimination will be removed
- change in jurisdiction – the amendments to the legislation will require prosecutions to be heard before Magistrates, rather than Industrial Magistrates. This will mean that appeals will no longer be heard by the Industrial Court of Queensland, but will instead go to the District Court and then on to higher courts in the general system
- broadened definition of 'worker' to include labour hire, contractors and subcontractors – while the concept of a 'person conducting a business or undertaking' (PCBU) as an obligation holder has been retained, to date the responsibility has been limited to a definition of workers which excluded contractors. By expanding the definition of a worker under the new legislation, the obligations of PCBUs will be greater
- tougher penalties – the penalties under the new legislation for breaches have increased markedly, both in terms of financial penalties and gaol terms for company officers and individuals. For example, under current Queensland law, the maximum penalty that can be imposed against a corporation is $1 million. This would be available in circumstances where multiple fatalities occurred. Under the new legislation, the maximum penalty available in these circumstances will be $3 million. The increased level of penalties will no doubt lead to closer examination of the ability for companies and their officers to insure against this risk, both in legal and premium cost terms
- removal of standard of 'ensuring' safety – in Queensland, the obligations placed upon PCBUs and others is to 'ensure' workplace health and safety. This standard will be amended to ensuring health and safety to the extent it is 'reasonably practicable'. This change will mean that the current almost strict liability will be removed and allow more scope for defending prosecutions
- removal of deemed offence for executive officers – one welcome change under the legislation is the removal of the current 'deemed offence' provisions. Under those provisions, executive officers of a corporation are deemed to have committed an offence if their corporation breaches its legislative safety responsibilities. Currently there is a reverse onus of proof requiring the executive officer to establish a defence. These provisions will cease to exist under the new laws. In addition, the concept of 'executive officers' will be removed and replaced with the narrower term 'officers', as defined in the Corporations Act 2001 (Cth)
- due diligence for company officers – while the removal of the deemed offence provisions is helpful, there are new 'due diligence' requirements placed on officers under the new laws that must be observed. These obligations are extremely broad and will require company officers to take a 'hands on' approach to safety within their business
- increased consultation obligations – while many employers consult with their workers and other duty holders as a matter of course, this will now be a legislative requirement under the new laws, and
- HSRs but no WHSOs – Health and Safety Representatives will be retained under the new laws and will have powers beyond those they already hold, including a new power to direct unsafe work to stop. However, Workplace Health and Safety Officer positions will no longer exist.
This Alert covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This Alert is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.