Recent developments in work health and safety

Key takeaways

• Persons conducting a business or undertaking (PCBUs) and Officers will be prohibited from holding insurances or indemnities in relation to monetary WHS Penalties. To the extent that your organisation has arrangements in place (either through insurance or indemnity arrangements), these should be reviewed in light of this prohibition.
• Negligence will be a sufficient fault element for a Category 1 offence, as an alternative to recklessness.
• The landscape for consultation, participation and representation under WHS laws will be significantly overhauled. Health and Safety Representatives (HSRs) will be given extensive new powers, including the power to issue cease-work directions to a business, rights to be notified of WHS entry, enforcement notices, events and incidents, and rights to have additional access to WHS information.
• Consultation on WHS matters must include unions if asked by a worker. Unions will have new paths to represent workers and HSRs, as well as to intervene in issues and disputes (including for both members and non-members who are eligible to be members).
• Workplace right-of-entry powers will be strengthened, including limiting requirements to comply with business WHS requirements on entry, and information gathered under rights of entry may be used for broader general public safety purposes.
• Dispute resolution provisions will also be modified so that more WHS matters will go before the Queensland Industrial Relations Commission (QIRC).
• Regulator powers will be expanded, allowing the conduct of investigations extraterritorially, and permitting the sharing of information with HSRs, unions and other regulators in a broader set of circumstances. Limitations will apply to specific types of 'confidential commercial information'. Regulators will also be able to give written warnings when conducting compulsory interviews rather than explaining rights to the interviewees.
• The timeline to request the commencement of a WHS prosecution will be extended to 18 months, and members of the WHS Prosecutor's staff will be able to commence prosecutions.
• Safety in Recreational Waters laws will be amended to align with the updated WHS reforms.
• Interactions with National Rail Safety Laws will also be clarified.

Insurance contracts

The Bill will prohibit persons from entering insurance contracts or arrangements to cover liability for WHS fines under the Work Health and Safety Act 2011 (Qld) (WHS Act). The Bill:

• introduces offences of entering into, providing or taking the benefit of (without reasonable excuse) a contract of insurance or other arrangement that purports to insure or indemnify a person for a liability for a monetary penalty under the WHS laws;
• includes a 'deeming provision' so that an officer of a corporation also commits this same offence if the officer authorised or permitted the conduct constituting the offence, or the officer was—directly or indirectly—knowingly concerned in the body corporate's conduct constituting the offence; and
• provides that any terms of contracts or arrangements contrary to the above are void.

The maximum penalty for an offence as above is 500 penalty units ($77,400 for an individual and $387,000 for a corporation).

Negligence for Category 1 offences

The Bill will also make amendments to Category 1 offence provisions so that, as an alternative to 'reckless' conduct, 'negligence' may found the fault element of a Category 1 offence.

The intent behind this change is to lower the threshold for conviction of a Category 1 offence. The explanatory notes highlight that—unlike 'reckless' conduct—the fault element of 'negligence' does not require the prosecution to prove the offender had a subjective awareness that their conduct posed a substantial risk of death or serious injury or illness, and engaged in the conduct regardless.

The application of 'negligence' as the fault element for a Category 1 offence will align more closely with the industrial manslaughter offence, and means the existing standard of criminal negligence will apply to both offences.

Consultation, representation and participation updates

The Bill makes significant amendments to the existing consultation, representation and participation provisions in the WHS Act.

Key updates are:

• Consultation to include unions: redefining the nature of worker consultation under the WHS Act as requiring consultation with a workers' 'representative', if asked by a worker. A 'representative' in this context will mean either the HSR or a 'suitable entity' for representing the worker that is authorised by the worker. A 'suitable entity' will mean either a 'relevant union' for a worker or another entity that is authorised by the worker to assist the worker. A 'relevant union' for a worker will mean a union of which the worker is a member, or is eligible to be a member, and the rules of which entitle the union to represent that worker's industrial interests. Organisations other than registered industrial unions having coverage for the worker are excluded. This is a change from the existing provisions which only require that consultation include engagement with any HSR.
• Prohibition on hindering requests or elections of HSRs: prohibiting a PCBU from intentionally hindering, preventing or discouraging a worker from making a request to facilitate the conduct of an election for HSRs. Also prohibiting a PCBU from intentionally hindering, preventing or discouraging the election of an HSR, or the following of the applicable procedures for election. A maximum penalty of 200 penalty units applies.
• Requirement to invite election of HSRs: requiring a PCBU to notify workers of their rights in relation to the determination of work groups and election of HSRs, including who may represent them, and to invite workers to ask the PCBU to facilitate an election for HSRs in the business. This requirement applies regularly—as soon as possible after commencement of the business, within one year after each notification and invitation were last given, or at expiry of the term of an HSR or work group.
• Negotiations for work groups to include unions: requiring that negotiations for a work group include relevant unions, in addition to the workers that will form the group or any representatives, if the union notifies the PCBU in writing that the union wants to be a party to the negotiation and agreement. PBCUs must negotiate and agree on when and where negotiations will be carried out, and ensure the negotiations only occur at that time and place. Prohibitions on excluding unions or workers representatives from the negotiations will apply, with a maximum penalty of 100 penalty units applicable.
• Negotiations for work groups to be completed within 14 days: requiring PCBUs to take all reasonable steps to ensure that negotiations for a work group be completed within 14 days or any agreed extended date. This is a change from current provisions, which only require negotiations to commence within 14 days.
• Health and Safety Committees (HSCs) to be established within 28 days: requiring PCBUs to establish an HSC as soon as practicable, but not later than 28 days after a request. This is a change from the current provisions, which allow two months.
• Requirements to notify HSRs: PCBUs will be required to inform an HSR about receipt of notices of entry by WHS entry permit holders, receipt of enforcement notices relating to their work groups, and notifiable incidents affecting their work group. PCBUs will also be required to inform HSRs when a WHS entry permit holder or an inspector enters a workplace relevant to their workgroup, and to permit the HSR to accompany the permit holder or inspector.
• New 'cease-work' notices by HSRs: enabling HSRs to give written cease-work notices (including oral directions), requiring PBCUs to cease work where there is a reasonable concern that a relevant worker will be exposed to serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard. This shifts the obligation onto PCBUs receiving a notice to direct a cessation of work, rather than merely enabling HSRs to advise workers to cease work in such scenarios. Notices must be displayed, and consultation obligations then apply to attempt to resolve the matter.
• Other expanded HSR powers: expanding the powers of HSRs to request information concerning the WHS of workers in their work group. Also expanding the powers of HSRs to request assistance from a 'suitable entity', which, for an HSR, will mean either a 'relevant union' or another entity authorised by the HSR to represent or assist them (excluding organisations that are not registered or do not have coverage), as well as having associated powers to accompany WHS entry permit holders when exercising functions at the workplace. HSRs are entitled to payments including overtime, penalties and allowances for the performance of their functions. HSR options to choose their own training courses are also expanded.
• PIN timelines shortened: requiring PCBUs to remedy contraventions under provisional improvement notices issued by HSRs within four days (instead of the existing eight days). Also limiting the request for review period to three days (instead of the existing seven days).

Issues and dispute resolution

The Bill makes significant amendments to the existing dispute resolution provisions in WHS laws.

Key updates are:

• Parties to issues to include both HSRs and unions: expressly providing that the parties to an issue for resolution under the Act can include any 'relevant union' for a worker affected by the issue and who notifies the PCBU that the union wants to be a party. The Bill also updates the existing provisions for workers or HSRs to be party to disputes, and expressly enables each of them to be represented by a 'suitable entity'. These provisions capture registered organisations that have coverage, extending both to their members and eligible members.
• QIRC dispute resolution pathway: enabling most disputes about a broad range of WHS matters to be referred to the QIRC as a primary option, rather than first having an inspector appointed to deal with the issue. There are some limited cases where inspectors must first be appointed, such as work group determination matters.
• Unions may intervene in WHS disputes: expressly providing that if a 'relevant union' for a worker affected by the WHS matter in dispute is not named as a party in a dispute notice, it may notify the industrial registrar in writing that it wants to participate in resolution of the dispute. Again, these provisions capture registered organisations that have coverage, extending both to their members and eligible members.
• Discriminatory conduct expanded: the existing offence provisions in the WHS Act prohibit discriminatory conduct for prohibited reasons related to WHS matters and rights. The Bill will expressly clarify that conduct in which a PCBU treats a worker less favourably than other workers of the PCBU is included as discriminatory conduct. Jurisdiction for these matters is also moved to the QIRC.

Right of entry

The Bill makes significant amendments to the existing right of entry provisions for WHS entry permit holders in WHS laws.

Key updates are:

• Notices of entry not invalid: notices of entry to investigate suspected contraventions will not be invalid because of formal defects or irregularity, including a failure to use correct names if relevant persons are sufficiently identifiable.
• Right to remain: the Bill will clarify that WHS entry permit holders can remain at a workplace for the time necessary to complete the exercise of their statutory powers, subject to the limitation that such rights can only be exercised during the usual working hours at the workplace. This resolves uncertainty over the right to enter compared with the right to remain.
• Workplace WHS requirements might be unreasonable: WHS entry permit holders are currently required to comply with any reasonable request by the PCBU in relation to a WHS requirement upon entry to a workplace. Under the Bill, a request of this kind will not be reasonable if complying with the request would unduly delay or unreasonably prevent or hinder the WHS entry permit holder exercising certain rights of entry (for suspected contraventions or for consultation and advice).
• Electrical safety contraventions: various rights of entry are clarified to confirm that they apply in relation to electrical safety matters as for WHS matters.
• Use and disclosure of information for general public safety purposes: existing provisions limit the circumstances in which information gathered under WHS laws may be used and disclosed. The Bill will widen the circumstances in which the information may be used or disclosed to extend to a serious threat to public health or safety, 'whether in relation to the suspected contravention or generally'. This change may enable a broader use of information obtained under entry powers than is currently the case, because information obtained in relation to one particular contravention could potentially be disclosed for general public safety purposes.

Powers of the regulator

The Bill expands the existing powers of the regulator under WHS laws.

Key updates are:

• Extraterritorial powers: the Bill will enable the regulator to service notices to obtain information on persons, even if they are outside the State of Queensland or the notice relates to information, documents, matters or evidence that is outside of Queensland.
• Powers to share information with HSR and unions: the Bill will enable the regulator to give particular information on request to HSRs and WHS entry permit holders, as relevant to notices issued by the regulator, including improvement, prohibition and non-disturbance notices. There are some exemptions for personal information and confidential commercial information. Confidential commercial information is defined as information about a trade secret, financial information or other information that has commercial value and, if disclosed, will cause significant financial harm to a business or undertaking.
• Additional ways to use and share information: the Bill will provide for additional use and sharing of information by a regulator where the information has been obtained through the exercise of powers under WHS laws. These powers will enable the regulator to share information with any other person, including corresponding regulators, if the regulator reasonably believes it is necessary for the administration, monitoring or enforcement of WHS or other laws.
• Power to require production of documents: the Bill will clarify that inspectors may make requests within 30 days after entering a workplace, as well as when they are at the workplace.
• Audio-visual attendance: the Bill will enable inspectors to require attendance before them by audio-visual link as well as in person.
• Written warnings: the Bill will enable Inspectors to give persons a written notice warning them of their rights before a compulsory interview. This will limit the need for Inspectors to provide warning information to persons about their rights by way of oral explanation at the commencement of interviews.
• Costs of review: the Bill will limit the availability of cost orders for external reviews of reviewable decisions. Generally, the parties will bear their own costs.

Codes of practice reviews

The Bill will remove provisions automatically providing for a five-year expiry for Codes of Practice, and will instead impose provisions for regular review at least every five years.

Proceedings and prosecutions

The Bill will:

• extend the 12-month deadline, to 18 months, for a person to request the WHS Prosecutor to bring a prosecution for a Category 1 or 2 offence; and
• enable qualified members of the WHS Prosecutor's staff to commence prosecutions and proceedings for contraventions of WHS Civil Penalty Provisions.

Safety in recreational waters

The Safety in Recreational Water Activities Act 2011 (Qld) will also be amended in a manner consistent with the WHS proposals. The key changes for this Act are:

• Amendments to Category 1 offence provisions so that, as an alternative to 'reckless' conduct, 'negligence' may found the basis of a Category 1 offence.
• Prohibiting persons from entering insurance contracts or being granted indemnity, or benefiting from these arrangements, to cover liability for WHS fines.

Removal of inconsistencies with rail safety legislation

The Bill also amends the WHS Act to enable it to apply concurrently with the Rail Safety National Law (Queensland), where it did not already do so.

Next steps

Boards and senior management should now consider:

• Reviewing arrangements for worker and representative participation at the workplace, and providing uplifted training for managers involved in administration of the new laws.
• Reviewing workplace right of entry protocols, including management processes for release of information and records.
• Checking issue and dispute resolution processes for WHS matters to ensure they are fit for purpose.
• Reviewing protocols for sharing information with the regulator to protect confidential commercial information shared under compulsion.
• Reviewing existing insurance arrangements to avoid holding prohibited indemnities.
• Continuing to grow leadership competency and capability in relation to WHS requirements in Queensland.

Major uplift for New South Wales WHS laws

By Sam Betzien and Fiona Austin

Major changes and recommended steps

The New South Wales Government recently passed an Act that has made major changes to work health and safety laws (NSW WHS laws).

You can view the Work Health and Safety Amendment Act 2023 (the Act) here.

In this Insight, we explore the key WHS reforms proposed by the Bill and offer recommended steps that you can take now to prepare as the changes become law.

Key takeaways

• Maximum penalties for Category 1 offences under NSW WHS laws will be increased to a maximum of 10 years' imprisonment, or fines of over $10 million for corporations.
• Corporations may be held criminally liable in a broad set of circumstances, including the combined conduct of multiple individuals. Corporate liability may be based on a corporate safety culture that tolerates or leads to conduct constituting an offence. Corporations will need to demonstrate the taking of all reasonable precautions involving adequate management, control and supervision of officers, employees or agents, as well as adequate information communication systems.

Increased penalties for WHS offences

The penalties for offences under NSW WHS laws will be substantially increased under the Act. A Category 1 offence might attract a maximum penalty of 10 years' imprisonment, or increased fines. The maximum fines are over $10 million for corporations, over $2 million for officers and over $1 million for individual workers. Penalties for other offences under the Act are also uplifted in conformity.

Corporate criminal liability

The Act clarifies corporate criminal liability provisions for the NSW WHS laws.

Corporate liability provisions are introduced to aggregate conduct by one or more individuals and attribute it to a corporation. These provide (in summary) that conduct engaged in by a board of directors, or an officer, employee or agent acting within the actual or apparent scope of their employment or authority, or with their express or implied agreement, is taken to be conduct of the body corporate.

The state of mind of a corporation will also be taken to have been that of the corporation if (in summary):

• the board of directors, or an officer, employee or agent of the corporation intentionally, knowingly or recklessly engaged in the relevant conduct or expressly, tacitly or impliedly authorised or permitted the relevant conduct; or
• a corporate culture existed within the corporation that directed, encouraged, tolerated or led to the conduct. A corporate culture is identified broadly as one or more attitudes, policies, rules, courses of conduct or practices existing within the corporation generally or in the part of the corporation in which the relevant activity takes place; and
• in relation to conduct of officers, employees or agents, the corporation does not prove it took all 'reasonable precautions' to prevent the conduct or the relevant authorisation or permission. The taking of reasonable precautions would require adequate management, control and supervision of the conduct of officers, employees and agents, as well as adequate communication systems.

Other changes are also introduced to facilitate corporate criminal liability, including clarification as to when a body corporate can rely on a defence of 'mistake of fact'. This defence will only be available where the body corporate had the relevant mistaken, but reasonable belief, and also had taken 'reasonable precautions' to prevent the conduct in question.

Officer liability clarified

The Act includes provisions that confirm that officers may be charged with Category 1 offences in relation to breaches of duty to persons to whom the relevant PCBU owes a duty. This clarifies that liability of officers is not limited to persons to whom the officer owes a direct personal duty.

Police powers

The Act also introduces police powers in relation to:

• enforcement of compliance under NSW WHS laws
• some limited circumstances relating to personal protective equipment
• training requirements of food delivery riders working in the gig economy.

Commencement

The Bill received royal assent on 24 October 2023, with many provisions commencing on that date. The major increased penalties will commence from 1 July 2024.

Next steps

Boards and senior management should now consider:

• Assessing the influence of the corporate culture on conduct, and considering what strategies may be required for ongoing measurement or improvement of safety culture.
• Reviewing management accountabilities for the adequate management, control and supervision of the conduct of officers, employees and agents, as well as adequate communication systems.
• Continuing to grow leadership competency and capability in safety knowledge and corporate WHS systems.
• Seeking an independent review of the adequacy and effectiveness of WHS management systems and business WHS controls.
• Revisiting the corporate safety strategy and assessing whether any other adjustments are required to planned programs to demonstrate officer due diligence.