Recent developments in work health and safety law

The latest issues, decisions and proposed changes impacting business and workplace risk 34 min read

SafeWork NSW's new Psychological Health and Safety Strategy indicates an increased focus on compliance

By: Sam Betzien, Emma Gillman, Olivia Brumm

SafeWork NSW has now launched its Psychological Health and Safety Strategy 2024-2026 (the Strategy). The Strategy promotes preventative and proactive (rather than reactive) approaches to managing psychological health and safety in the workplace, and reflects the regulator's increased focus on monitoring and enforcing compliance in this space.

Key takeaways

• SafeWork NSW's previous strategy, the Mentally Healthy Workplaces Strategy 2018–2022, focussed on raising awareness and building capability in workplaces to manage psychological health and safety issues. Although raising awareness and building capability are still key focusses of the new Strategy, the regulator has indicated an increased focus on compliance.
• SafeWork NSW intends to increase regulatory action (including prosecution) against high-risk and large businesses and government agencies in particular. High-risk industries identified in the Strategy include Public Administration and Safety, Education and Training and Healthcare and Social Assistance.
• The Strategy's other focus areas include supporting at-risk workers (including young workers, culturally and linguistically diverse workers, ATSI peoples and workers with lived-experience of poor mental health) and supporting small and medium-sized businesses to meet their legal obligations.

How does this affect you?

The overarching goal of the Strategy is to ensure that workplaces know how to (and are equipped to) comply with their psychological health and safety obligations, and to improve compliance outcomes.

It is important that businesses in NSW are aware of SafeWork's intention to increase enforcement action in this space, so that they can ensure they are taking proactive steps to manage existing psychological health and safety risks in their workplace and addressing any areas of non-compliance that are identified.

Over the life of the Strategy, businesses can expect to see:

• Increased regulatory action against high-risk and large businesses and government agencies. This will include prosecutions against workplaces that repeatedly do not comply with their psychological health and safety obligations and those that engage in serious breaches.
• SafeWork inspectors completing 'psychosocial checks' whenever they visit businesses or agencies with two hundred or more workers.
• Planned inspector compliance visits to increase by 25% per year between 2023 and 2026. This aligns with the regulator's focus on ensuring workplaces are adopting a proactive and preventative (rather than reactive) approach to managing psychological health and safety.

You can read more about the Strategy here.

New South Wales industrial manslaughter laws

By: Sam Betzien and Fiona Austin

Key takeaways

• The Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (NSW) (Bill) was introduced in June 2024. It has passed the Legislative Assembly and is currently before the Legislative Council.
• The Bill creates an offence of industrial manslaughter, with maximum penalties of 25 years' imprisonment for individuals and $20million for bodies corporate.
• Bodies corporate may be convicted of industrial manslaughter based on inadequate corporate management, control or supervision, or failure to provide adequate system for conveying relevant information to workers within the body corporate.
• These are in addition to the significant increases in New South Wales penalties for other offences outlined in our earlier update.

Industrial manslaughter

A new Part 2A will be introduced into the Work Health and Safety Act 2011 (NSW) (WHS Act). This includes s34C which creates the offence of industrial manslaughter.

A person commits the offence if the person:

• has a health and safety duty, and
• is PCBU or officer of a PCBU, and
• engages in certain conduct that constitutes a failure to comply with the health and safety duty and causes the death of a worker or another individual to whom the person's health and safety duty is owed, and
• engages in the conduct with gross negligence.

The maximum penalty for the offence is imprisonment for 25 years for an individual or $20m for a body corporate.

The fault element for an industrial manslaughter offence includes the concept of 'gross negligence'. The Bill will extend the circumstances in which a body corporate has engaged in such conduct, so that the conduct may be established despite no individual authorised person of the body corporate having engaged in the conduct. Rather, it will be satisfied if the body corporate has engaged in conduct with gross negligence when viewed as a whole, determined by aggregating the conduct of more than one authorised person.

Additionally, engaging in conduct with gross negligence may be evidenced by the fact that the conduct was substantially attributable to inadequate corporate management, control or supervision of the conduct of one or more authorised persons, or failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

Limitations and alternative verdicts

There are no limitation periods for the commencement of proceedings for an industrial manslaughter offence.

Regulators cannot accept a written undertaking in relation to a contravention involving an industrial manslaughter offence.

Alternative verdicts are available, meaning that a court or jury could find a person charged with industrial manslaughter is instead guilty of a Category 1 offence. These offences will still expose persons to significant penalties including imprisonment, as outlined in our earlier update.

Looking forward

All New South Wales organisations should ensure that workers and officers are aware of and understand the new industrial manslaughter laws. They should also review their existing health and safety management systems to ensure that they can demonstrate best practice corporate management and health and safety communication systems as required.

Diligent director found not guilty

By: Sam Betzien and Fiona Austin

The New South Wales District Court has acquitted¹ a company director charged with a failure to exercise due diligence. The case provides some practical examples of effective due diligence in action within a medium sized business.

Key takeaways

• Due diligence does not require that directors ensure safe outcomes in all circumstances. The focus is on whether the director has taken all reasonable steps to oversee company compliance.
• There is a heavy onus on the prosecution in proceedings to be able to particularise and prove what reasonable steps a director should have taken in any case.
• Directors who can provide evidence and records of due diligence activities will be well placed. Delegation to competent management, provision of sufficient resourcing and personal verification of implementation are key.

Background

Mr Doble was a director of Miller Logistics Pty Ltd, which operated a transport depot in NSW. A truck driver at the depot was seriously injured after being struck by a forklift driven by another worker. At the time of the incident, the injured truck driver was working on foot, assisting in relation to a truck located in the loading / unloading area.

The company, Miller Logistics, was found guilty of a breach of the general duty of a person conducting a business or undertaking. It had failed to take reasonable measures including separating forklifts and pedestrians, providing designated loading and unloading zones, and implementing related traffic management controls such as lanes and barriers. It had also failed to have a suitable traffic management plan including a relevant safe system of work and to provide supervision to workers in the area to ensure that it was followed.

Decision

The prosecution alleged that Mr Doble had failed to exercise due diligence to ensure that Miller Logistics complied with its own duties. It was alleged that he had failed to ensure that Miller had available appropriate resources and processes in place and specifically that he had failed to 'require, instruct or direct' Miller Logistics to take the reasonable measures required. The prosecution also alleged that Mr Doble had failed to verify that the required resources or processes were provided and implemented.

The evidence in the case covered the role and activities of Mr Doble in relation to safety and health matters within the company. The court noted that Miller was a medium sized operation, with eight depots spread throughout NSW. Unlike a one or two person business, a managing director in the position of Mr Doble could not know everything that was going on at any given moment, recognising that to run a corporation there must be a degree of delegation.

Mr Doble was found not to be a hands-off director in relation to safety matters. For example:

• Mr Doble had ensured the business had competent safety management in place. The evidence showed that a senior HR and compliance professional (Mr Hayter) had been specifically employed to manage health and safety by putting in place required policies and procedures and dealing with issues which arose from time to time. There was nothing in evidence that suggested that Mr Doble had any reason not to place confidence in Mr Hayter carrying out his duties.
• Mr Doble had attended regular management meetings and had work and health safety listed on the agenda and covered at every meeting. He followed up on actions as discussed at previous meetings.
• Mr Hayter reported to Mr Doble about safety matters from time to time and Mr Hayter and other staff said that when safety matters were raised with Mr Doble requiring attention there was no budgetary constraint imposed in fixing a safety problem, there was no push back from Mr Doble on safety spend.
• Mr Doble had visited each depot from time to time, taking an active interest in ensuring that work health and safety compliance were attended to. When at depots if he observed a problem, he would call Mr Hayter to have it fixed.

The court considered that these actions showed that Mr Doble had put in place a system to manage safety risks and that he had verified the required resources and processes were being implemented. The prosecution had not proven beyond a reasonable doubt that Mr Doble had failed to exercise due diligence. Mr Doble was not obliged to take all reasonably practicable measures which had to be taken by the company, and he was not required to ensure the health and safety of workers.

Looking forward

Boards and officers should continue to engage in continuous improvement in safety and health governance and personal due diligence activities. Where sound systems and resources are in place, and directors can demonstrate personal verification activities are ongoing, then due diligence obligations may be satisfied. The size of an organisation and nature of the risk involved in any particular organisation is important context to inform the content and scope of the due diligence activities required.

Dismissal of 'blindsided' employees deemed unfair after refusing to comply with COVID-19 vaccination mandate

By: Alana Perna and Joseph Aharfi

The Fair Work Commission (FWC) has ruled that DP World Sydney Limited and DP World Brisbane Pty Ltd (collectively, DP World) unfairly dismissed 25 employees for refusing to comply with a mandate requiring employees to be vaccinated against COVID-19. While the mandate itself was lawful, DP World denied workers procedural fairness by failing to consult with them as required under work health and safety legislation. DP World's failure to notify workers of the reason for their dismissal, and failing to provide these workers with a genuine opportunity to respond to that reason, ultimately rendered the dismissals unfair.

Key takeaways

• The case serves as a pivotal reminder that consultation obligations and procedural fairness must be prioritised when dealing with employees, both during the course of employment and upon termination.
• Employers are obligated to engage in genuine consultation with employees when proposing any mandate or program that will, or is likely to, affect workers, as far as is reasonably practicable. This proactive approach is likely to ameliorate any potential findings of unfairness.
• A valid reason for termination does not necessarily shield employers from unfair dismissal findings. A procedural misstep, such as failing to notify employees about the reason for dismissal, or failing to provide them with a genuine opportunity to respond, can create procedural unfairness, ultimately contributing to an overall judgment of unfair dismissal.

Background

In 2021, amidst the COVID-19 Delta variant outbreak in Melbourne and Sydney, DP World introduced the DP World Australia COVID-19 Vaccination Mandate (Mandate). The Mandate stipulated that employees must receive two doses of a COVID-19 vaccine by certain dates based on their locations and provide either evidence of vaccination or a medical exemption. Following these specified dates, DP World terminated the employment of 25 employees due to non-compliance with the Mandate. These workers subsequently made an application to the FWC alleging unfair dismissal, seeking reinstatement, and in default, compensation.

Decision

The FWC had earlier found that the imposition of the Mandate was a reasonable response to the emergence and transmission of the Delta variant of COVID-19.² Consequently, the employees' non-compliance with the Mandate was a valid reason for their dismissal.

However, the FWC determined that DP World unfairly dismissed each of the 25 employees due to procedural deficiencies in the termination process. Specifically, DP World's failure to afford the employees 'a real opportunity to explain their non-compliance with the Mandate' denied procedural fairness, which was 'exacerbated by [DP World]'s failure to meet their consultation requirements under workplace health and safety legislation.³ Consequently, despite the existence of a valid reason, each workers' dismissal was ultimately 'harsh' and 'unreasonable'.⁴

While reinstatement is the primary remedy for unfair dismissal, the FWC held that this remedy was appropriate for only one employee who had medical reasons for non-compliance. With respect to the remaining employees, the FWC found that the rights of an employer to implement a lawful and reasonable health and safety policy 'should [not] be trumped by a small group of employees who were dismissed for failure to comply and have maintained their decision.'⁵ Given the Mandate was still in effect, the FWC ordered the payment of compensation to each of the remaining employees.

Moving forward

The decision emphasises employers' consulting obligations under work health and safety legislation, alongside similar terms within enterprise agreements. Employers should carefully consider whether imposing new requirements may face opposition from some employees. In such scenarios, it is essential that employers ensure these individuals are properly consulted. Employers should be particularly mindful that any such employees have a legislative right to be consulted – even if the proposed changes are lawful and reasonable. As observed by the FWC, 'a proper consultation process would have weighed against any finding of unfairness' for DP World.⁶

Additionally, it is crucial that employers take steps to afford employees procedural fairness throughout the dismissal process. Notifying employees about the reasons behind their intended dismissal, while providing an opportunity to respond before the decision is finalised, is paramount.

Industrial manslaughter in Queensland – an update

By: Sam Betzien and Hannah Jorgensen

Amendments to Queensland's WHS Act passed parliament in March 2024 (generally implementing the amendments identified in our earlier update), however the proposed changes to the Category 1 regime to include 'negligence' as a fault element did not proceed at that time. This reflected recent findings from a review into industrial manslaughter in the state.

Subsequently, the Electrical Safety and Other Legislation Amendment Bill 2024 (Bill) has been introduced to implement additional proposed changes along with a refreshed and extended industrial manslaughter regime.

Key takeaways

• Government has introduced a Bill to amend Queensland's existing industrial manslaughter laws with a renewed focus on strengthening protections and bringing provisions in line with other Australian jurisdictions. These changes will implement broader application of the existing manslaughter laws (including application to bystanders, not just workers, and the introduction of alternative verdict provisions).
• Negligence will also be a sufficient fault element for a Category 1 offence, as an alternative to recklessness.

Industrial manslaughter review

Queensland's existing industrial manslaughter laws are contained in the Work Health and Safety Act 2011 (Qld) (WHS Act) and criminalise conduct by a person conducting a business or undertaking (PCBU) or senior officer that is negligent and causes the death of a worker whilst that worker is carrying out work for the business or undertaking.

In response to a recommendation arising from the five-yearly review into the WHS Act, Work Health and Safety Prosecutor Simon Nicholson was asked to conduct an independent review of Queensland's industrial manslaughter laws. Nicholson subsequently released a 44-page report, the 'Review to examine the scope and application of the industrial manslaughter provisions in the Work Health and Safety Act 2011' (Nicholson Report), which sets out his findings and recommendations following consultation with industry, workers, affected persons and other representative bodies.

The Nicholson Report made three key recommendations to amend Queensland's existing industrial manslaughter offence provisions:

• include bystanders and individuals whose death is caused by the negligent conduct of PCBUs and senior officers as part of the offence (which would bring Queensland in line with other Australian jurisdictions);
• remove the words 'for the business or undertaking' to clarify that multiple parties in a contractual chain can be held accountable for a crime; and
• introduce alternative verdict provisions to allow triers of fact to return a verdict for a category 2 offence if not satisfied beyond a reasonable doubt of industrial manslaughter (noting that some other Australian jurisdictions have already enacted similar provisions).

The Nicholson Report was released after the Work Health and Safety and other Legislation Amendment Bill 2023 (Qld) (WHS Bill) was first introduced to Parliament in November 2023 (as detailed in our earlier update). The WHS Bill originally contained amendments to establish 'negligence' as a Category 1 fault element, but was subsequently passed on 21 March 2024 without this particular element to allow a further opportunity for review.  

Amendments introduced in new Bill

The Electrical Safety and Other Legislation Amendment Bill 2024 (Bill) has now been introduced in May 2024. It implements the following key changes:

• The existing offence of industrial manslaughter is omitted and replaced with new criminal offences of industrial manslaughter applicable to PCBUs or senior officers of a PCBU. Key elements include:
  • an individual to whom the person has a health and safety duty dies or is injured and later dies; and
  • the person's conduct causes the death of the individual; and
  • the person is negligent about causing the death of the individual by the conduct.

These updates reflect the Nicholson Report recommendations described above.

• Penalties for the new industrial manslaughter offence will be 20 years imprisonment for an individual or 100,000 penalty units for a body corporate.
• Alternative verdict provisions are also introduced so that on an indictment charging a person with an offence of industrial manslaughter, the person may alternatively be convicted of either a category 1 offence or a category 2 offence.
• Negligence will be a sufficient fault element for a Category 1 offence, as an alternative to recklessness. The intent behind this change is to lower the threshold for conviction of a Category 1 offence. 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.

Looking forward

We recommend that businesses take this opportunity to train their workers in relation to the updated laws and continue to review and strengthen their existing WHS systems and practices.

Queensland electrical safety review

By: Sam Betzien and Fiona Austin

Amendments to the Electrical Safety Act have been introduced to government in May 2024 to reflect modern electrical technology. This reflected recent findings from a review into electrical safety in the state.

Key takeaways

• The Electrical Safety and Other Legislation Amendment Bill 2024 (Bill) was introduced in May 2024. It is currently undergoing committee review.
• Changes will be made to the regulation of new and emerging technologies such as storage and generation equipment like PV, batteries, and ELV equipment.
• Regulatory and licensing powers are also to be streamlined.

Extra low voltage (ELV) equipment

The Bill introduces specific regulatory requirements for ELV equipment where prescribed. While ELV was previously only regulated by general duties of care, specific regulatory requirements now can apply. 

Based on government policy this change is presently intended to target e-scooters and the like, and is intended to target supply chain arrangements. However obviously there is a scope for the type of equipment to be modified based on emerging risk over time.

This change will also impact on incident notification requirements for incidents and dangerous events involving prescribed equipment. However, there is no specific need for an electrical work licence for work in prescribed ELV equipment, if it can be safely performed without electrical expertise.

Generation equipment and storage technologies

The Bill introduces changes to capture items that can be supplied with electricity from a battery or other storage technology, as regulated electrical installations. This will capture PV and other emerging generation and storage technologies and related equipment.

This will have the practical impact of extending related requirements such as electrical work standards and wiring rules to this type of equipment.

Replacing appliances

The Bill excludes replacement of an appliance included in an electrical installation with a similar appliance from the definition of electrical work. The practical impact is to enable this work to be performed by electrical fitters, not only electrical mechanics.

In-scope equipment

The Bill enables voltage ranges for in-scope equipment to be prescribed by regulation rather than defined in the Act. Types of in-scope equipment can also be excluded by regulation.

The regulator and WHS Prosecutor

The Bill includes a number of provisions clarifying regulatory and enforcement powers. These include:

• Additional powers are given to inspectors to require information within 30 days after a right of entry has been exercised. This includes the power to require written answers to questions or to require oral examination.
• Warnings (about rights and privileges) may be given by inspectors in writing before compulsory examination, rather that necessarily requiring oral explanation by the inspector.
• Processes for making and publishing electrical safety undertakings are streamlined. This change mirrors recent similar updates to the WHS Act in Queensland. It will be important to ensure that all persons attending before an inspector fully understand their rights beforehand as a written notice may not be as effective as the existing approach.
• Processes for commencement of prosecutions are streamlined to support the functions of the Work Health and Safety Prosecutor.

Licences and discipline

Changes are proposed so that:

• Licence holders must advise PCBUs of changes in conditions or restrictions in their licences.
• Licensing committee powers are extended.

Looking forward

Organisations should monitor the progress of the Bill with a view to take advantage of an early opportunity to update of their electrical safety processes to reflect the modernised regime.

Victorian review proposes larger corporate fines

By: Sam Betzien and Courtney Ferguson

Victoria's Sentencing Advisory Council has published a statistical report and consultation paper seeking submissions from the public on the occupational health and safety (OHS) sentencing regime, representing the first major review of OHS offences in Victoria in 20 years.

Key takeaways

• Victoria's Sentencing Advisory Council is seeking submissions from employers, employees, the broader community and legal stakeholders on 19 key questions it has published in its consultation paper. It is intended that these submissions will feed into a series of final recommendations to update the OHS sentencing regime.
• Fines are currently the most common sentencing outcome for OHS offences. At present, maximum fines for OHS offences are up to around $19.2 million⁷ for companies or up to 25 years imprisonment for individuals for the most serious offences (eg, workplace manslaughter). Maximum fines for individuals for other offences may be up to around $346,000.⁸
• The most common offence sentenced in Victoria is a failure of an employer to reasonably provide a working environment that is safe and without risks to employees or members of the public.

The current landscape

The statistical report outlines the sentencing of offences between the period of 2005 to 30 June 2021. Most notably:

• there were 1,903 OHS offences sentenced in respect of 1,197 OHS cases;
• the majority of offenders (83.3%) were companies;
• most individual offenders (16.2%) were male;
• most cases sentenced in higher courts involved a death while most cases sentenced in lower courts involved someone being injured or exposed to a risk; and
• the most common offences involved the failure of an employer to reasonably provide a working environment that was safe and without risks to employees and contractors or members of the public.

Sentencing Advisory Council consultation

The consultation paper seeks feedback from various stakeholders on 19 key questions. These questions prompt consideration for:

• the purposes of sentencing;
• objective factors that should be considered by a court when sentencing OHS offences;
• aggravating factors that should be considered by a court when sentencing OHS offences (eg, serious harm or death to a person), noting that historical sentencing analysis highlights that where an individual has died, sentencing values are typically increased;
• the role of victim impact statements;
• opportunities for diversionary measures;
• appropriateness of imprisonment for a wider range of OHS offences;
• opportunities for companies to undertake works, programs and / or be made to publicise the nature and consequences of OHS offences;
• consequences for companies of convictions being recorded;
• increases to the value of fines;
• the process for the payment of fines for OHS offences (particularly in light the number of unpaid fines); and
• any other issues that should be considered.

Looking forward

The Sentencing Advisory Council has opened the consultation process and is set to deliver its final report and recommendations by 31 December 2024.

Queensland resources safety review

By: Sam Betzien and Fiona Austin

The Queensland government published the Resources Safety and Health Legislation Amendment Bill 2024 (Qld) on 18 April 2024 which proposes to modernise all key resources safety legislation in the state including mining, explosives and petroleum safety legislation. It is expected to be passed during June 2024.

Key takeaways

• Mines safety legislation will be amended to include new requirements for 'critical control' management aligned with high-reliability organisation theory. Due diligence obligations of officers will be updated accordingly.
• Mines safety regulation will be updated including enhanced powers of industry and site representatives and new competency and related requirements for various appointed roles.
• Contractor and service provider management obligations for mines safety will be clarified and be extended to include parties arranging contract work, services and labour hire.
• Mines safety obligations will be extended to remote operating centres. The application of petroleum safety obligations will also be extended to some additional production activities.
• Industrial manslaughter laws across all regimes will be updated to extend beyond traditional employer and employee relationships.
• Petroleum safety laws will be updated to provide for compulsory interviews by inspectors despite self-incrimination.
• The enforcement landscape will be enhanced including extended time limitations for prosecutions and transferring the jurisdiction of mine safety matters to the general courts. Enforceable undertakings and alternative sentencing options are also introduced.

Critical control management for mines

Under the proposed reforms, an acceptable level of risk for a mine will only be achieved if risk management elements and practices for the mine through its management and operating systems 'provide for critical controls'.

A critical control is to be defined as:

'A risk control measure for a coal mine—

(a) that is critical to—

(i) prevent a material unwanted event at the coal mine; or

(ii) mitigate the consequences of a material unwanted event at the coal mine; and

(b) the absence or failure of which would significantly increase risk despite the existence of other risk control measures.'

A 'material unwanted event' at a coal mine, will be defined as 'an unwanted event in relation to which the potential or real consequence to safety or health exceeds a threshold defined by the coal mine operator as warranting the highest level of attention'.

Safety and health management systems and principal hazard management plans will need to include critical control management elements. The effect is that all operators will be required to ensure very strong governance arrangements are in place to define and oversee critical control effectiveness.

Due diligence obligations of officers of corporations will also be updated, to require officers to oversee the management of risks but also the management of critical controls.

Remote operating centres for mines

The Bill will make it clear that safety and health management systems must incorporate any remote operating centre (ROC) and that ROC workers have obligations in relation to the safety of persons at the mine and as a result of mining operations. The general obligations have always applied to persons who may affect the safety and health of others at a coal mine, so any doubt is now removed.

Obligations of the site senior executive (SSE) will also be extended in relation to ROC workers. SSEs must ensure that no work is undertaken by an ROC worker until they are sufficiently inducted in management systems and otherwise fully trained.

Earthworks at mines

Persons who are a 'designer, constructor or erector' of earthworks at a mine will hold additional obligations under the proposed bill. They are added to the categories of duty holders.

Mining contractors and service providers

The proposed legislation has attempted to clarify the confusion in the existing mine safety legislation regarding the differential duties for contractors and service providers. The former section in the mining safety legislation providing for separate obligations for service providers is to be deleted, and the definition of contractor extended as follows:

'contractor includes—

(a) a person contracted to carry out work at a coal mine; and

(b) a person contracted to provide a service to a coal mine; and

(c) a person contracted to provide coal mine workers to a coal mine, including, for example, a labour hire agency.'

This more accurately reflects the broad range of commercial arrangements that are relevant and removes the ambiguity inherent in the previously disparate duties for contractors and service providers.

However, the new approach could potentially be seen to continue some inherent drafting problems in the legislation. In maintaining any distinction between the concepts of activities to 'carry out work' and 'provide a service', there remains room for an argument to apply a narrow definition of 'work' (ie. to argue that work as a concept is distinct from providing a service).This could potentially affect the interpretation and operation of other general duties.

Additionally, the proposal makes it clear that contractors duties can apply to contractors who are not 'at' the mine. The duty is to be altered from applying to contractors 'at' a mine, to applying to contractors 'for' a mine. The impact of this is enhanced by new provisions making it clear that the obligations apply to 'arranging work or a service' as well as undertaking work. Extended duties are also confirmed in relation to impacts on fitness for use of plant at the mine.

This change will require contractor organisations to review the application of the mines safety legislation to upstream activities that could affect their contract delivery, and demonstrate risk management accordingly.

Mines safety regulation

The Bill will update the appointment requirements for appointed roles such as SSE, supervisors and examiners, mechanical and electrical engineering manager. Competencies and certification requirements are defined.

Significant updates to the stakeholder regulatory provisions are proposed. These include a change so that ISHR obligations to provide notice prior to mine entry are removed. New provisions are introduced regarding the process for election of SSHRs and their powers will extend to requiring the SSE to give the SSHR reasonable help to exercise their powers.

Mining incident notifications

New incident notification obligations are introduced, including replacing the obligation to orally notify a broader category of serious accidents or deaths or HPIs 'as soon as possible' rather than 'as soon as practicable'. This will affect the interpretation obligation as practicability includes an element of prioritisation that is absent from possibility.

New notification obligations are also introduced requiring SSEs to notify contractors about injuries, illness or HPIs, or relevant changes to the mine or plant or substance at the mine, that may affect the contractor's workers.

Mine safety enforcement

Changes are made to Queensland courts hearing mine safety matters, removing these proceedings from the industrial court jurisdiction. Matters will be heard by a general magistrate with appeals to the district court.

Updates are proposed to the industrial manslaughter regime. The definition of an 'employer' for the purposes of the industrial manslaughter offence is extended to persons who employ or engage workers, as well as to persons who arrange for workers to work at the mine. Operators and holders will be expressly captured in these provisions, regardless of the corporate structures regarding employing entities.

The Bill proposes to introduce enforceable undertakings in the mine safety arena in relation to alleged contraventions. These cannot be accepted in relation to offences causing death. Additional orders may also be made in relation to offences including adverse publicity orders and project orders.

Limitations on time for starting proceedings are extended. Under the new provision, a proceeding for an offence against this Act may be started within 2 years after the offence first comes to the knowledge of a complainant. The existing 3 year cap on this limitation is to be removed. Additionally, proceedings may be started within 6 months after an enforceable undertaking is given if it is then contravened.

Explosives safety amendments

The Bill also proposes updates to explosives safety laws, aligned to the mine safety updates we have described above. These relevantly include updates to the industrial manslaughter regime to apply beyond the direct employer and employee relationship. They also include additional obligations to notify incidents 'as soon as possible'.

Enforceable undertakings are also introduced, and time limitations for prosecutions are also extended to be taken within 2 years after the offence first comes to the knowledge of the complainant, or within 6 months after breach of an enforceable undertaking.

Petroleum and Gas safety amendments

The Bill makes minor modifications to clarify the definition of operating plant, so as to capture additional production activities.

Other amendments are made to align to the mine safety updates we have described above. These relevantly include updates to the industrial manslaughter regime to apply beyond the direct employer and employee relationship.

Incident notification obligations are updated. These include mine notification obligations in relation to mining interfaces, as well as an update to notify other prescribed incidents 'as soon as possible' by telephone.  

Additional extended powers are also included for inspectors conducting investigations including to compel persons to answer questions about an incident, even if the answer might tend to incriminate the individual. In alignment with other safety legislation, protections are provided so that information will not be admissible in any proceedings against the individual other than in relation to the falsity of the information provided.

Enforceable undertakings are to be introduced and new sentencing options are proposed including adverse publicity orders and project orders.

Looking forward

Resources safety legislation in Queensland will be further modernised once the Bill is passed.

In a substantive sense, the introduction of critical control risk management will add a new layer of obligations on top of existing risk management requirements in the mining sector. No longer will good critical control management be aspirational, it will become a minimum legal obligation. We anticipate that governance for critical controls and their effectiveness will be an important issue for senior leaders in this context.

Further, for all the resources regimes with a stronger set of regulatory powers and enhanced representative provisions, additional stakeholder oversight can be anticipated. New enforcement options including publicity orders and extended time limitations also raise the legal risk associated with contraventions. We expect that organisations will want to review and optimise coordination between safety and legal functions to continue to improve management of this legal risk.

Victorian incident notification obligations amended

By: Sam Betzien and Fiona Austin

Safety incident notification obligations in Victoria will be expanded from July 2024 requiring notification of incidents involving the collapse, overturning, failure or malfunction of, or damage to, a broader range of workplace plant.

Key takeaway

The Occupational Health and Safety Amendment (Incident Notification) Regulations 2024 have been passed in Victoria and will extend safety incident obligation notifications to capture an extended category of plant.

Incident notification obligations

The Occupational Health and Safety Regulations 2017 (Vic) will be updated with effect from July 2024.

Duty holders are required to notify the Regulator under the Occupational Health and Safety Act 2004 (Vic) in relation to 'incidents involving the collapse, overturning, failure or malfunction of, or damage to, prescribed plant'.

The relevant prescribed plant will be updated to include a number of additional types of plant, including relevantly plant that lifts or moves persons or materials (excepting ships, boats, aircraft or some vehicles), pressure equipment, tractors, earthmoving machinery, scaffolds, temporary access equipment, explosive powered tools and turbines.

Relevant qualifications will continue to apply to the notification obligation, such that the incident exposes a person to a serious risk to the person's health or safety emanating from an immediate or imminent exposure to the incident.