Significant changes to the State's WHS laws reinforce the importance for private and public sector organisations in Queensland to review, respond to and manage any workplace health and safety (WHS) concerns that may be raised.
The passage of the Workplace Health and Safety and other Legislation Amendment Act 2008 means qualified WHS representatives will be deputised to issue provisional improvement notices after consultation (although these changes do not affect mining operations) and that WHS prosecutions will be available in the public sector. The maximum penalties for breach of WHS laws will also increase to $1 million.
Provisional improvement notices (PINs)
A qualified WHS rep will soon be able to issue a PIN, in a move that effectively deputises qualified WHS reps at their workplace, to capture their knowledge of local WHS issues. Deputised WHS reps who can exercise statutory powers after consultation will be familiar to those with experience in mining and quarrying in Queensland.
To issue a PIN, a WHS rep must have completed approved training, have a reasonable belief that a person within the WHS rep's area of representation is contravening Queensland WHS laws (or that a repeated contravention is likely), and have first consulted with the recipient about the alleged breach.
Once served with a PIN, the recipient may ask an Inspector for a review (which suspends the PIN temporarily). The Inspector must attend the workplace and investigate and may affirm, modify or cancel the PIN. The recipient can face prosecution for failing to respond to the issues identified in a PIN.
To review a PIN, an Inspector must come to site. Organisations with inadequate mechanisms to respond to WHS concerns raised may be reluctant to seek a review of a PIN, because they are concerned about what an Inspector might discover during that visit. To prepare for these changes, prudent employers, principal contractors, project managers and executive officers will review and update:
- how effectively their organisation identifies and deals with WHS issues proactively;
- how it reviews, manages and responds to WHS concerns when they are raised (through consultation with a WHS rep or otherwise); and
- how they confirm afterwards that the intended response has been put in place and is working effectively to eliminate or control the risk.
The outcome of that review will help an organisation understand when it might be in a position to seek an Inspector's review of a PIN. Effective risk identification and management processes will allow a swift response if a PIN is issued, and help identify issues an Inspector might otherwise discover when on site to review a PIN.
The changes will take effect from a date to be proclaimed. No date has been set yet, but recent media statements suggest May 2009, to give WHS representatives time to be trained. Prudent organisations will use this time wisely.
Public sector prosecutions
From 1 January 2009, the Act will expressly allow WHS prosecutions of the Queensland Government and its agencies, including departments and successors.
The maximum penalty for the public sector will be the same as for the private sector. From 1 January 2009, the maximum penalty for breach of WHS laws will be $1 million for multiple deaths (up from the current $750,000) due to an increase in the value of a penalty unit (from $75 to $100).
While the Act ousts the Crown Proceedings Act 1980 and sets out a process clearly intended to apply to prosecutions in the public sector, the second reading speech says "in all but the most serious cases the preference will be for a written undertaking with the offending department rather than prosecution", reflecting the current practice. The Act will recognise public sector undertakings from 1 January 2009.
Public (and private) sector executive officers remain personally liable to prosecution in appropriate circumstances, subject to the defences (of inability to influence, and exercising reasonable diligence to ensure the corporation complies with its WHS obligations). A review of the organisation's processes for identifying and managing WHS risks proactively will help all dutyholders prepare for when these changes take place.
The Act also:
- clarifies that a person may have a WHS duty at a place in certain circumstances, even if it is not that person's workplace (including in relation to specified high risk plant);
- allows a prosecution over a workplace death to be brought up to two years after the coroner makes a finding in relation to the death; and
- clarifies WHS Inspector immunity from civil claims for giving information and advice.
These changes come at an interesting time for WHS, with the national drive for harmonisation underway.
Robin Stewart-Crompton, who was responsible for the 2007 Queensland review that recommended these changes, is now Chair of the National Review Panel, suggesting these changes may be reflected in further recommendations of the Panel, and possible adoption across the county.
The Panel's first report, which dealt with duties and (who should be) proper dutyholders, offences and associated matters, contains some recommendations similar to Queensland's new laws, but there are some differences too. Two key differences are the Panel's recommendations to make the prosecutor responsible for proving the dutyholder has not taken reasonably practicable steps to meet their duty (whereas Queensland dutyholders remain responsible for proving defences), and its recommendation to adopt a $3 million maximum penalty across the country (in contrast to the new $1 million maximum penalty in Queensland).
The next step in the harmonisation process is the Panel's second report, which is due on 30 January 2009. Whether its recommendations reflect the Queensland changes, WHS laws are certain to change again.
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