Australia: Significant changes to Qld WHS laws to commence shortly – are you ready?

Last Updated: 28 October 2017
Article by Shae McCartney

Most Read Contributor in Australia, October 2017

Sweeping changes are coming to the Queensland's work health and safety laws after a best practice review of the laws was conducted in response to the Dreamworld and Eagle Farm incidents. It is important to understand the impending changes as a number will impact the day to day safety operations of businesses that operate in Queensland.

An Act which was passed by Parliament on 12 October 2017 and received Royal Assent yesterday, the Work Health and Safety and Other Legislation Amendment Act 2017, introduces several changes to Queensland's WHS laws that will impact day to day safety operations in business. These changes are the legislative response to the Best Practice Review Workplace Health and Safety Queensland.

The introduction of the Industrial Manslaughter offence is one of the most significant changes. The offence relates to where a worker has died as a result of a PCBU's negligent conduct. PCBU's charged under this provision will not be entitled to rely on the "accident" defence in section 23 of the Criminal Code and successful prosecution can result in up to 20 years' imprisonment for an individual and a penalty of $10 million for a corporation.

These provisions will not apply retrospectively.

Other changes made by the new Act include:

  • expansion of the Queensland Industrial Relations Commission's (QIRC) jurisdiction to hear and determine WHS disputes and Inspectors powers in relation to right to entry disputes;
  • changes to compliance obligations in relation to Codes of Practice (COP);
  • changes to the roles of Health and Safety Representatives (HSR) including training obligations;
  • establishment of an independent statutory office for work health and safety prosecutions (WHS Prosecutor);
  • reintroduction of the ability for a PCBU to appoint a work health and safety officer (WHSO).

Dispute resolution changes

The changes in relation to dispute resolution processes relate to disputes regarding:

  • the provision of information by an employer to a HSR;
  • a request by a HSR for assistance;
  • the WHS issue resolution process; and
  • cease work matters.

The new process means that where assistance has been requested from the regulator to resolve the dispute and the dispute remains unresolved (for at least 24 hours) a party to the dispute can give notice to the QIRC and request the commission deal with the dispute. The QIRC can then deal with the matter as it sees fit, including making a determination which carries a penalty if not complied with.

The new Act also gives Inspectors the power to determine a right to entry dispute and allows an Inspector to grant immediate access to a site where the Inspector decides the right to entry exists.

These provisions will have a real impact on businesses, with disputes being able to be put before the QIRC very quickly. The changes also mean that once a dispute is notified to the QIRC, the relevant union can elect to become involved in the resolution of the dispute.

Code of Practice compliance changes

Once commenced, COP compliance requirements will revert back to how they existed under the 1995 WHS laws. This means the COPs must be complied with, or where a business chooses to conduct works 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.

The changes also include a provision that makes COPs expire five years after they are approved to ensure they are kept current.

Practically this means that businesses will need to review their operations against all of the relevant COPs that apply to the work being done and ensure compliance. Of note is the fact that many COPs include reference to Australian Standards which means compliance with the COP includes compliance with the Australian Standard.

HSR role changes

The Act has introduced a number of changes to the HSR role that businesses need to be aware of and plan for. These include:

  • the requirement to provide the regulator with a list of HSRs;
  • the introduction of mandatory training for HSRs; and
  • the requirement to forward to the regulator a copy of all PINs issued by HSRs.

Most significant of these amendments is the requirement to train all HSRs within 6 months of them being appointed. The training must be as prescribed in the regulations and the Act also contains the amendments to the regulations in respect of this training.

The training that must be undertaken is a five-day course (as approved by the regulator) with refresher training every three years. An employer must allow a HSR time off to attend this training and pay for the training and any reasonable costs associated with this. This change will impact businesses financially as even existing HSRs will need to be trained once the legislation is introduced. It is prudent to begin to plan how this training will be managed early.

WHS Prosecutor

The Act introduces a statutory office to handle WHS prosecutions. The Act sets out the powers and functions of this role and deals with the appointment of the prosecutor, the office and staff. It also sets out the required information exchanges with the regulator.

This change removes the prosecutorial role from the regulator, although category 1 offences and industrial manslaughter offences will still be referred to the DPP.

Reintroduction of WHSOs

The Act inserts a new Part 5A which reintroduces the role of WHSO. The provisions set out the functions and obligations of a person appointed in the role of WHSO. The provisions also provide immunity for WHSOs where they act in good faith.

Important for business is the inclusion of a provision which means that engagement of a WHSO can be used as evidence that steps have been taken to manage health and safety risks.

Timing

A number of the new provisions, including the introduction of the Industrial Manslaughter charge and the obligations on PCBUs to provide a list of HSR's and a copy of any provisional notice received to the regulator, commenced yesterday, on the date of assent. The remaining amendments to the WHS Act will commence on either the 18th of July 2018 or on a date to be fixed by proclamation.

What you need to do:

The new legislation introduces some significant changes to the way WHS will be monitored and enforced. Before these provisions come into effect, there are three things every PCBU should be doing:

  • identifying any existing Codes of Practice which will apply to the PCBU and assessing current compliance levels;
  • organising training programs for current and future HSR's to ensure PCBU obligations will be met; and
  • consideration of whether appointing a WHSO under the new voluntary scheme would be useful given the evidentiary value it can provide.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.