Publications / Work Health and Safety
THINGS YOU NEED TO KNOW
- Changes for oil and gas safety imminent:
- plant operators will need new safety management ‘systems’, and
- on shared coal and gas tenure, joint interaction management plans will be required.
- Shift in governance of workplace bullying.
- Coronial inquests may be able to start or resume before any related indictable offences are heard.
WHAT YOU NEED TO DO NEXT
- Be prepared for the upcoming changes and compliance timelines.
Queensland work health and safety laws have been reviewed in 2014 with important changes being either contemplated or brought into effect.
Significant changes affecting the petroleum and gas industry – and also affecting joint tenures with coal mines – are likely to soon come into effect, the Water Reform and Other Legislation Amendment Act 2014 (Qld) (Amendment Act) being given Royal Assent on 5 December 2014.
There are also proposed changes to the Coroners Act 2003 (Qld), and earlier this year there was a shift in how workplace bullying is governed under Queensland safety law.
This Focus article considers these developments as well as prosecution trends from reported matters.
Water Reform and Other Legislation Amendment Act 2014 (Qld)
Petroleum and gas safety
For petroleum and gas safety, the Amendment Act will make changes to the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (PGPS Act) and the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) that will commence upon a date yet to be proclaimed.
These changes will require that operators of operating plant have in place and implement a ‘safety management system’, shifting from the previous requirement for a safety management plan. The Explanatory Memorandum to the Bill states that this will better reflect requirements for a dynamic system to achieve compliance, rather than just a single document.
Within this safety management system, the details of the Site Safety Manager (SSM) for each site in the system must be recorded. This is designed to ensure an SSM is appointed for each site that requires a SSM at operating plant.
A further notable change is how prosecutions must be commenced under the PGPS Act. All proceedings for an offence under Chapters 7, 8, 9 (in its entirety and not just parts 2, 4 or 6) and 10 of the PGPS Act will need to be brought summarily before the Magistrates Court. This will eliminate the potential for errors in identifying the correct Court when commencing proceedings.
Our Focus article on the proposed changes to petroleum and gas safety requirements in Queensland, as first tabled, can be accessed here.
Coal and coal seam gas resource safety
As a result of the Amendment Act, changes to both the CMSH Act and the PGPS Act will commence regarding safety and health obligations in the context of joint tenure. Where there are joint tenures including activities being carried out on a mining tenement (for example a mining lease) granted after a corresponding petroleum tenement (for example a petroleum lease), a joint interaction management plan will be required.
The onus to make a joint interaction management plan falls on the Site Senior Executive (SSE), who must make reasonable attempts to consult with the gas party to jointly identify, analyse and assess risks and hazards in the overlapping area. The SSE will be taken to have made reasonable attempts to consult if the SSE has given the gas operator a copy of the plan and the operator has not made any proposal to the SSE about it within 20 days. Negotiations may be held for three months before the SSE must apply for arbitration, or the SSE can do so at any time.
The amendments to the PGPS Act include transitional arrangements for the implementation of joint interaction management plans. Under the amendments, the pre-amendment PGPS Act will continue to apply to an operating plant and the tenure overlaps mentioned in the pre-amendment PGPS Act for a period of six months after commencement, as if the management plan provisions had not commenced. Overlaps involving coal seam gas will also be subject to the six month transition.
Six months after the proclaimed commencement date, compliance will be required with the joint interaction management plan provisions, as amended. At the present time, the commencement date has not been set.
Our Focus article on the proposed change to coal and coal seam gas resource safety requirements in Queensland, as first tabled, can be accessed here.
New Commissioner qualifications
Changes to the CMSH Act and the Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSH Act) will also begin following the commencement of the changes under the Amendment Act.
The amended CMSH Act and the MQSH Act will enable the chief executive of the Department of Natural Resources and Mines, or another appropriately qualified person (with written authorisation of the chief executive), to take proceedings to prosecute under the CMSH Act and the MQSH Act. The power of the Commissioner for Mine Safety and Health to also commence proceedings is maintained.
The amendments are cited as a response to extending powers, due to the broad role the Commissioner performs under the CMSH Act and the MQSH Act, which can vary from time to time.
This broad role has also been the trigger for a change to the mandatory qualifications necessary for the appointment of the Commissioner. Once the amendments commence, the CMSH Act will provide that qualifications in law and professional experience in the law relating to mine safety, or ten years professional experience in a senior position relating to operational mine safety management, will be recognised as appropriate qualifications.
Coroners Act 2003 (Qld)
The recent Justice and Other Legislation Amendment Bill 2014 (Qld) includes proposed changes to section 29 Coroners Act 2003 (Qld), including limiting the operation of the section to indictable offences.
Currently, a Coroner is prohibited from commencing or resuming an inquest into a death where a person has been charged with any offence in which the question of whether the accused caused the death may be in issue, until after the end of the proceedings for the offence (including any appeals).
However, the proposed amendment will give the Coroner discretion whether to commence or resume an inquest prior to proceedings ending or appeals being finalised, where a person has been charged with a summary offence.
If the Bill is passed, a new section 116 Coroners Act 2003 (Qld) will also be introduced, allowing the new section 29 to apply retrospectively.
This amendment will allow inquests about previous deaths that have not been started, or that have been adjourned, to now be started or resumed despite any ongoing proceedings or appeals for summary offences.
The Explanatory Note to the Bill states that the amendments are to prevent any unnecessary delay in commencing or resuming a coronial inquest, allowing the Coroner to exercise their capacity to make ‘meaningful comment aimed at preventing deaths of a similar nature occurring in the future’.
The First and Second Readings took place on 26 November 2014, with a committee due to report back to Queensland Parliament on 2 February 2015.
Workplace bullying and Codes of Practice
In February this year, the Work Health and Safety (Codes of Practice) Amendment Notice (No. 1) 2014 revoked the Prevention of Workplace Harassment Code of Practice 2004. This change resulted from Queensland Attorney-General and Minister for Justice Jarrod Bleijie, approving and adopting Federal guidelines published by Safe Work Australia.
Accordingly, guidance about workplace harassment and bullying can be found in the ‘Guide for Preventing and Responding to Workplace Bullying’ and ‘Dealing with Workplace Bullying – A Worker’s Guide’. While these guides are not strictly enforceable, following a guide would demonstrate compliance where proceedings arise.
The Safe Work Australia guides (including those relating to bullying) can be found here.
As the third full year of the Work Health and Safety Act 2011 (Qld) (WHS Act) ends, prosecution trends are emerging. As at the date of publication, there were 14 cases of harmonised WHS Act prosecutions reported on the WorkCover Queensland website. Six of these 14 prosecutions were in the building industry.
Nine of these matters involved individuals. Six individuals were prosecuted as persons carrying on a business or undertaking and two company officers were prosecuted. Last, but not least, one prosecution was for intimidating and threatening an inspector.
There has been a mixture of penalties handed down, including a combination of fines, good behaviour bonds and training orders. Other matters have resolved by way of undertaking, rather than by prosecutions.
The highest reported penalty imposed on a corporate entity to date is a $70,000 penalty, together with a 24 month good behaviour bond subject to a $70,000 recognisance, plus costs. This was imposed following an incident in which a worker was badly injured when falling from the basket of a poorly maintained elevated work platform, and which was described by the Court as ‘an accident waiting to happen’.
The trends do not necessarily indicate how the Department will approach prosecutions in the future, but give valuable insight into the industries that appear to be at risk and the individuals who may be liable.
We wish you a merry and safe Christmas and, with significant changes in the pipeline and the continued stream of prosecutions coming through, we look forward to keeping you informed in 2015.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus 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.