A new era for workplace safety in QLD will commence July 1st, 2018. Is your workplace ready?
Why is Queensland changing WHS Legislation?
After two high profile incidents in 2016, the QLD Government was prompted to undertake a Best Practice Review of Work Health and Safety laws.
The first incident, which remains under investigation occurred at Dreamworld when an amusement park ride failed and resulted in four fatalities.
The second incident, was at the Eagle Farm Racecourse redevelopment when a concrete slab toppled over and crushed two workers at the construction site. The workers’ supervisor is being prosecuted for two counts of manslaughter over the deaths.
To implement key recommendations of the Best Practice Review, parliament passed the Work Health and Safety and Other Legislation Amendment Act 2017. According to Worksafe Queensland, the amendment Act amends:
- Work Health and Safety Act 2011
- Electrical Safety Act 2002
- Safety in Recreational Water Activities Act 2011
What is the new Legislation?
As of October 2017, industrial manslaughter is a criminal offence in Queensland. Similar provisions exist in the Australian Capital Territory. According to Safety Solutions, similarly, the Victorian Government is eager to instate a penalty that is strong enough to act as a deterrent against unsafe workplace practices, as up to 30 people are killed in the workplace across the state of Victoria every year.
A report on the new WHS legislation by Australian Business Lawyers and Advisors states:
There are two types of industrial manslaughter offences in Queensland:
- Industrial manslaughter by a person conducting a business or undertaking (PCBU)
- Industrial manslaughter by a senior officer
The senior officer offence was created to make a distinction between a person who makes, or participates in making, decisions that affect a substantial part of the business. This is intended to capture individuals at the highest levels in an organisation – those who can decide and influence safety management and culture at their workplace.
The elements of industrial manslaughter under new WHS regulations QLD are:
- A person died
- The defendant’s conduct caused the death
- The defendant was negligent
Please note, under the industrial manslaughter charges a person may not die immediately. This is particularly important where workers die many years after the causal effect (e.g. Asbestosis and black lung (pneumoconiosis)).
Source: Australian Business: Lawyers and Advisors – New WHS Legislation
Senior officers and management must exercise ‘due diligence’ to ensure that their business complies with the Act. If not, successful prosecution can result in 20 years imprisonment for an individual and a penalty of 10 million for a corporation.
What are the changes?
Compliance of Codes of Practice (COP)
A breach of a Code of Practice is now an offence. Australian Business Lawyers and Advisors state that, prior to the 2017 amendment, the Minister could approve a Code of Practice. The breach was not in itself an offence.
The new amendment requires:
- Codes of Practice must revert back to their existence under the 1995 WHS laws. COPs require complete compliance
- If a business chooses to conduct work 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
- Codes of Practice will expire after five years to ensure they are kept current
- Fulfilment of Codes of Practice includes compliance with the Australian Standards
New Variant of Work Health and Safety Officers (WHSO)
Under the new Act commencing on July 1st, 2018:
- A PCBU (Person Conducting a Business of Undertaking) can appoint a Work Health and Safety Officer
- Existing WHSOs will need to apply for a certificate of authority for an appointment as a WHSO
- As of April 1st, 2018, to qualify, a WHSO will need a Certificate IV in Work Health and Safety (Cert IV). This affects existing WHSOs who do not hold a Cert IV obtained in 2018. They will need to enrol and complete the certificate next year
WHSOs must conduct annual assessments of health and safety risks in your business.
Modification of Health and Safety Representatives (HSR)
- From 1 February 2019, all HSRs must undertake the relevant approved training course within three months of their election unless a training course is not reasonably available within this period. Existing HSRs, who have not already completed the training, must complete the training within the required period. If a worker chooses not to undertake the training within the time period, they will no longer be eligible to fulfill the role of HSR and will need to be replaced
- HSRs must attend the government approved 5 Day HSR training course, with refresher training every three years
- The employer must finance the training and any reasonable associated costs
- Existing HSRs will need to be trained once the legislation is introduced
- As of October 2017, The Amended Act requires businesses to provide the regulator with a list of HSRs and must forward a copy of all Penalty Improvement Notices (PIN) issued by HSRs
Checklist – All Businesses Should:
- Engage an expert to audit your compliance with Codes of Practice (COP)
- Organise training for current and future Health and Safety Representatives (HSR)
- As of April 1st, 2018, you should have appointed a Workplace Health and Safety Officer (WHSO), who holds the correct documentation
Workplace safety needs to be your number one priority & non-compliance is not an option. Ensure all your employees and customers return home safe every day.
Fire and Safety Australia endeavours to reduce risk to improve safety in the world, one experience at a time. Contact FSA today for more information on how to comply with the new legislation.
- Australian Business Lawyers & Advisors. 2017. New Legislation WHS: Work Health and Safety Queensland. [ONLINE] Available at: https://www.ablawyers.com.au/getattachment/News/Act-now-for-WHS-Queensland-compliance/WHS-Changes-in-QLD-(locked).pdf.aspx?lang=en-AU. [Accessed 19 June 2018].
- Clayton UTZ. 2017. Significant changes to QLD WHS laws to commence shortly – are you ready?. [ONLINE] Available at: https://www.claytonutz.com/knowledge/2017/october/significant-changes-to-qld-whs-laws-to-commence-shortly-are-you-ready. [Accessed 19 June 2018].
- Occupational Health Services Australia (OHSA). 2018. Health and Safety Representative HSR Training now Mandatory. [ONLINE] Available at: https://www.ohsa.com.au/health-and-safety-representative-hsr-training-now-mandatory/. [Accessed 19 June 2018].
- Office of the Queensland Parliamentary Counsel. 2017. Work Health and Safety and Other Legislation Amendment Act 2017. [ONLINE] Available at: https://www.legislation.qld.gov.au/view/html/asmade/act-2017-038. [Accessed 19 June 2018].
- Safety Solutions. 2018. Workplace deaths could see employers jailed for 20 years. [ONLINE] Available at: https://www.safetysolutions.net.au/content/nsca-foundation/news/workplace-deaths-could-see-employers-jailed-for-20-years-800552677. [Accessed 19 June 2018].
- Worksafe Queensland. 2017. Workplace Health and Safety Laws. [ONLINE] Available at: https://www.worksafe.qld.gov.au/laws-and-compliance/workplace-health-and-safety-laws. [Accessed 19 June 2018].