6 November, 2017
In response to a horror year of catastrophic workplace fatalities that were subject to intense media scrutiny and public outrage in 2016, specifically the fatalities at the construction site at Eagle Farm Racecourse and on the Thunder River Rapids Ride at Dreamworld Amusement Park, the Queensland Government recently passed the Work Health and Safety and Other Legislation Amendment Bill 2017 (Amendment Bill) to address concerns about the strength of the work health and safety (WHS) framework in place in Queensland. The Amendment Bill was based on a Best Practice Review of Workplace Health and Safety Queensland earlier this year.
The concerns raised about the Queensland WHS framework included whether the regime was powerful enough to be an effective deterrent to non-compliance (both in terms of potential penalties and enforcement of the legislation) and whether the legislation was responsive to emerging issues. One such trend, which has been covered by Clyde & Co in a series of articles previously (here and here), is the increasing number of prosecutions under general criminal laws (manslaughter, grievous bodily harm) and which are typically commenced much faster than WHS prosecutions.
The changes introduced by the Amendment Bill have created new offences attracting higher penalties and a greater ability for the regulator to monitor compliance with the legislation on an ongoing basis. In addition, some of the amendments reflect a move away from the outcomes-based obligations in the model WHS laws towards more process-based obligations.
The key features of the Amendment Bill, which will commence gradually throughout 2017 and 2018, are outlined below.
Industrial Manslaughter offences
The Amendment Bill introduces a new offence in the Queensland WHS Act of industrial manslaughter, both for senior officers and persons conducting a business or undertaking (PCBU). The industrial manslaughter offences commenced on 23 October 2017, almost one year to the day since the tragic death of four people at Dreamworld on 25 October 2016.
New Section 34C of the WHS Act provides that a PCBU commits an offence if:
- a worker dies in the course of carrying out work for the business or undertaking, or is injured and later dies; and
- the person's conduct causes the death of the worker (meaning the conduct substantially contributes to the death); and
- the person is negligent about causing the death of the worker by the conduct.
Similarly, new Section 34D of the WHS Act creates an offence of industrial manslaughter by a senior officer of a PCBU. The elements of this offence are the same as in Section 34C. To be a 'senior officer', an individual need only be 'concerned with, or take part in, the corporation's management'.
This is a stark contrast to the current officer duty in Section 27 of the WHS Act which applies to persons who make or participate in making decisions that affect the whole, or a substantial part, of the business or undertaking. Despite being categorised as relating to 'senior officers', the offence under new Section 34D has a much broader application than the officer duty in Section 27. Managers that are not considered senior enough to owe due diligence duties could nevertheless be convicted of an industrial manslaughter offence.
Another issue is that there is no limitation period applicable to the industrial manslaughter offences. This is in contrast to general duty provisions which have a two year time limitation period. The absence of the limitation period is consistent however with general criminal manslaughter offences.
The existing standard of proof in Queensland for criminal negligence, beyond a reasonable doubt, applies to both offences. Equivalent amendments install industrial manslaughter offences in the Electrical Safety Act 2002 (Qld) and Safety in Recreational Waters Activities Act 2011 (Qld).
The maximum penalty for a body corporate is AUD 10 million (100,000 penalty units). A senior officer (or an individual that is a PCBU) faces a maximum penalty of imprisonment for 20 years. These penalties represent a substantial increase from the maximum penalties in place previously, being AUD 3 million for a body corporate and five years imprisonment for an individual for a Category 1 offence. According to the Queensland Government, these significantly higher penalties for industrial manslaughter offences reflect what the community perceives as 'appropriate' for the worst cases of workplace fatalities which involve criminal negligence.
Creation of an Independent WHS Prosecutor
A statutory office independent from the regulator, Workplace Health and Safety Queensland, will be established to conduct and defend proceedings under the WHS Act. The office will be headed by a WHS Prosecutor, appointed by the Governor-in-Council for a five year renewable term. The WHS Prosecutor will be supported by a number of staff and can delegate the WHS Prosecutor's powers under the WHS Act to an appropriately qualified member of the staff.
In addition to conducting and defending prosecutions and undertaking any other function in relation to WHS prosecutions, the WHS Prosecutor's role includes advising the regulator on matters relating to the WHS Act. In order to facilitate this, the Amendment Bill includes provisions enabling the sharing of information between the regulator and the WHS Prosecutor.
The creation of the WHS Prosecutor will go some way in ensuring independence in prosecutorial decision making is maintained, with prosecutions being commenced purely on the basis of the merits of the case. To that end, the WHS Prosecutor will be obliged to follow the Director of Public Prosecutions Guidelines when deciding whether to initiate a prosecution.
It is expected that the WHS Prosecutor will handle the vast majority of WHS prosecutions, which are prosecuted as Category 2 offences under the WHS Act. This is because Category 1 (offences involving recklessness) and industrial manslaughter offences will still be referred to the Director of Public Prosecutions for decision and action, not the WHS Prosecutor. The WHS Prosecutor may also grant authority to an inspector to take proceedings for Category 3 offences.
The office of the WHS Prosecutor will commence on a date to be fixed by proclamation.
Change in the status of Codes of Practice
The Amendment Bill has restored the status of codes of practice that existed under Queensland's predecessor legislation, the Workplace Health and Safety Act 1995, ensuring that codes of practice are the minimum standard for managing health and safety risks and that the regulator is able to enforce compliance with those codes.
Under the changes, commencing 1 July 2018, a PCBU must either comply with a code of practice approved for the purposes of the WHS Act or demonstrate that equal to or better measures were followed. This is different to the current regime under the WHS Act which allows a code of practice to be admissible in court proceedings as evidence of what was known about a hazard at a particular time, to determine what was reasonably practicable in the circumstances and as evidence of compliance with the WHS Act.
The change in status ushered in by the Amendment Bill essentially makes codes of practice mandatory in Queensland. Processes such as the critical risk management obligation of the hierarchy of controls (which is included in the Code of Practice: How to Manage Work Health and Safety Risks) compulsory for PCBUs, as it was prior to the commencement of the harmonised WHS laws.
In addition, all codes of practice will expire five years after their commencement to ensure they remain up-to-date and relevant.
Re-introduction of Work Health and Safety Officers
The Amendment Bill reintroduces the role of the Work Health and Safety Officer (WHSO) which existed under the predecessor WHS legislation in Queensland and signals a move to proactive compliance.
As of 1 July 2018, a PCBU may appoint a WHSO to undertake a variety of functions under the WHS Act, including notifying the PCBU on WHS matters; identifying and reporting on hazards and risks arising for the PCBU's work; immediately notifying the PCBU of any WHS incident or immediate or imminent risk to health and safety; investigating or assisting in incident investigations; accompanying inspectors during inspections at the PCBU; and establishing appropriate WHS educational and training programs. The appointed WHSO may be either an individual or the PCBU itself.
In addition, a WHSO will have assessment functions under the WHS Act, in that they must assess risks to health and safety from the PCBU's work at specified intervals of at least every 12 months. The WHSO must prepare a report on these assessments including recommendations about managing risks and provide it to the PCBU who must keep those assessments for 5 years.
PCBUs have obligations to WHSOs including provision of information, allowing their attendance at worker interviews; provision of appropriate resources and assistance; and consultation in relation to proposed changes with WHS implications for the PCBU. PCBUs must take appropriate action to manage hazards and risks notified by the WHSO.
WHSOs cannot be held liable for their acts or omissions as a WHSO.
Although the requirement for appointing a WHSO is expressed as optional, in reality it is mandatory given that appointing a WHSO is admissible as evidence of compliance with the PCBU's general duty of care under the WHS Act. The process-based functions of the WHSO are also able to be easily monitored by the regulator.
Availability of Enforceable Undertakings
As of 23 October 2017, in addition to Category 1 offences, enforceable undertakings will not be accepted by the regulator for a contravention (or alleged contravention) that involves a fatality, including a Category 2 offence and an industrial manslaughter offence. This change formalises a public policy position held by the majority of regulators around Australia and is reflective of the widely-held community expectation that any workplace fatality will be prosecuted.
Other significant changes
Powers of inspectors – right of entry and requiring production of information
Inspectors will have the power to make a determination on matters where WHS right of entry issues cannot be resolved, including whether there is a valid right to enter and the WHS issues that have arisen to the parties for entry. This change will commence on a date to be fixed by proclamation.
The Amendment Bill has also clarified the situations in which an inspector can require production or documents and answers to questions under section 171 of the WHS Act. A subject of technical debate has been whether or not an inspector's power under section 171 only applied to the specific workplace to which they enter (which is what a literal reading of the WHS Act suggests it does). The new provisions, to be introduced on 1 July 2018, provide that the powers under section 171:
- apply to an inspector who enters (or has entered within the last 30 days) a workplace or any other inspector;
- ensure that the production of a document is not limited to the workplace but can be at any place; and
- require a person to answer questions at any reasonable time and place, not just the workplace.
It is expected that these amendments will mean that inspectors will use their powers under Section 171 more frequently so that they are not burdened by the stricter requirements in Section 155 which require them, at least at first instance, to obtain written answers to questions.
Expanded jurisdiction of the Queensland Industrial Relations Commission
The Amendment Bill transfers jurisdiction for the review of reviewable decisions from the Queensland Civil and Administrative Tribunal to the Queensland Industrial Relations Commission (QIRC). The QIRC will have jurisdiction to hear and determine disputes in relation to:
- the provision of information by a PCBU to a Health and Safety Representative (HSR);
- a request by a HSR for assistance;
- a WHS issue resolution process; and
- cease work matters.
The transfer will happen on a date to be fixed by proclamation.
Role of Health and Safety Representatives
The role of HSRs has been further supported to include:
- reinstating repealed provisions requiring a PCBU to provide the regulator with a list of HSRs (including deputies) for each work group;
- mandating training for HSRs within six months of a HSR being elected to the role, with refresher training to be undertaken every three years; and
- requiring PCBUs to provide the regulator with a copy of all provisional improvement notices (PIN) issued by HSRs as soon as practicable.
The latter obligation on PCBUs is a significant step in the regulator's ability to monitor the compliance of organisations with the WHS Act and could act as a basis for commencing an investigation and, eventually, enforcement action. The obligations for PCBUs to provide the regulator with PINs and the list of HSRs commenced on 23 October 2017. The training requirements will commence on 1 July 2018.
What impact does the Amendment Bill have for the rest of the Australian jurisdictions?
The Queensland Government has indicated that it will urge that the changes implemented in the Amendment Bill be adopted by all states and territories signed up to the harmonised jurisdiction at the national review of the model WHS legislation to be held in 2018. Whether the other states and territories will be willing to accept the changes is another matter.
At present, there does not seem to be any national consensus regarding the need for an industrial manslaughter offence. The Australian Capital Territory has had an offence of industrial manslaughter under the Crimes Act 1900 (ACT) since 2003. A bill introducing an offence of industrial manslaughter was put before the South Australian parliament in 2015, but in late 2016 a parliamentary committee reported that it considered that the current laws adequately addressed work related fatalities arising from reckless disregard. Although not a harmonised state yet, in Western Australia a private members bill establishing an industrial manslaughter offence was introduced in June 2017. It is currently before parliament.
If any or all of the other harmonised states and territories do accept the changes that Queensland has made, they may still take the opportunity to iron out the inconsistencies that emerged in the Amendment Bill, in particular between 'senior officers' (to which the industrial manslaughter offence applies) and 'officers' who have a duty of due diligence under the WHS Act.
What is clear though is that, given the fundamental changes to the obligations of the model WHS legislation made by Queensland's Amendment Bill, if the changes are not embraced by the other jurisdictions that have signed up to the model WHS legislation, then harmonisation will surely have failed.
For further information, please contact:
Michael Tooma, Partner, Clyde & Co
michael.tooma@clydeco.com
