A new era in safety laws and enforcement for Queensland and NSW

There is no good in downplaying the changes to the regulation of safety in Queensland arising from the Best Practice Review undertaken by Tim Lyons (view report here), including the likely forthcoming changes to the WHS legislation by the Work Health and Safety and Other Legislation Amendment Bill 2017 (the WHS Bill). Refer to the list of key changes below. 

So how do you respond to the proposed Queensland Workplace Health Safety and safe building products laws, while the NSW regulator moves in the opposite direction?

Employment and Industrial Relations Minister, the Hon Grace Grace MP stated that the WHS Bill seeks to implement all 58 of the recommendations made following the Best Practice Review: read the 58 recommendations here.

In brief, we consider the key impacts on Queensland organisations will be:

• A lot more “hard compliance” enforcement action, including more statutory improvement and prohibition notices, and prosecution.
  
  This is a specific objective arising from the Best Practice Review. There will likely be a new compliance and enforcement policy issued. Legislative changes include the introduction of an industrial manslaughter offence, the separation of the prosecution function into an independent statutory office and enforceable undertakings will not be available where the offence involves a fatality.
  
  
• New safety related legal disputes in the Queensland Industrial Relations Commission between unions and PCBUs arising from:
  1. a dispute in relation to the provision of information by a PCBU to a Health and Safety Representative (HSR);
  2. a dispute in relation to a request by a HSR for assistance;
  3. a dispute in relation to a health and safety issue that hasn’t been resolved at the workplace; or
  4. a dispute arising from ‘cease work’ matters
  
  Under current laws, issue resolution and cease work processes are able to be resolved by Workplace Health and Safety Queensland and a union is not able to be a party.
  
  
• Greater presence of unions on site related to safety related issues.

Safe products in the supply chain

In addition, the Building and Construction Legislation (Non-conforming Building Products – Chain of Responsibility and Other Matters) Act 2017 will require considerable action in the building products supply chain parties: refer to below article for a summary of the changes.

Norton Rose Fulbright seminar

The question is how to assess the impact and respond, particularly at a time when the NSW SafeWork authority is, in some areas, heading in the other direction: refer to the article below about a recent forum we attended with senior SafeWork NSW officials.

We will be holding a seminar at our Sydney and Brisbane offices in October to discuss the changes set out in this legal update in further detail. We will also cover an update on non-conforming building products mentioned below. Invitations for these events will be sent out shortly.

On August 24, 2017, the Queensland Government passed the Building and Construction Legislation (Nonconforming Building Products – Chain of Responsibility and Other Matters) Amendment Act 2017 (Amendments Act), which will introduce a raft of changes to the Queensland Building and Construction Commission Act 1991 (QBCC Act).

What are the new safe products laws?

The substance of the new laws is set out in our earlier blog post when the laws were introduced in May 2017, which you can access here.

When will the new safe products laws take effect?

The non-conforming building products legislation came into effect on 1 November 2017.

Supply chain participants should be aware that that the provisions in the legislation regarding recall orders can be made for non-conforming building products in existence on the date of commencement, but will also apply to products that have been used on buildings before the commencement of the Act.

Changes since the Bill was introduced in May 2017

The Amendments Act as passed last week was substantially the same as the bill introduced in May, except for amendments to:

1. clarify the role of the Queensland Building and Construction Commission (QBCC), namely, the power of the QBCC to share and receive information that assists the performance of its duties;
2. amend and clarify the definition of ‘safe’ to align with the other duties based regimes, with the effect that the test for compliance is simplified;
3. clarify the clause relating to misrepresentations about the conformance or compliance of building products, such that it will be an offence if the relevant misrepresentation conveys that the product complies with the regulatory regime’s intended use when it does not;
4. ensure that the Minister has sufficient protections when making a recall order or warning statement about a non-conforming product;
5. authorise the Minister to prescribe codes of practice in subordinate legislation, in line with other duties based regimes, which will clarify how a chain of responsibility participant can discharge their duty; and
6. ensure clarity regarding the extraterritoriality of the legislation, recognising that there is a move in other states to adopt similar laws.
   
   

Commonwealth Government report on NCBPs

Following the Grenfell tower fire in London earlier this year, the Senate committee agreed to prepare an additional interim report on the implications of non-conforming external cladding materials in Australia as a priority, with the report due to be handed down on September 6, 2017. However, this has caused delays in the delivery of the interim report on products containing asbestos, which will now be handed down on October 31, 2017, and the delivery of the final report, which has been pushed back until April 30, 2018.

How can you prepare?

We can help you prepare for the changes to the laws by examining your systems that deal with building products that pass through your position in the supply chain, to ensure that you comply with the new obligations.

The Work Health and Safety and Other Legislation Amendment Bill 2017 (the Bill) was introduced by Employment and Industrial Relations Minister, the Hon Grace Grace MP to Parliament in its first reading on August 22, 2017.

The significant changes proposed by the Bill include the following:

• The creation of an industrial manslaughter offence for a senior officer and a body corporate where conduct negligently causes the death of a worker. The offence will apply the existing standard for criminal negligence, and carries a maximum penalty of 20 years imprisonment for an individual and a fine of $10 million for a body corporate.
• The establishment of an independent statutory office for WHS prosecutions. Workplace Health and Safety Queensland’s current prosecutorial functions are intended to be transferred to this statutory office, however prosecution decisions for category 1 offences and the proposed industrial manslaughter offence will be subject to review by the Director of Public Prosecutions.
• An extension of the jurisdiction of the Queensland Industrial Relations Commission to hear and determine certain disputes and decisions, including disputes regarding health and safety issues and cessation of work, where an affected union can be a party to the dispute.
• Allowing WHS inspectors to make a determination on right-of-entry disputes, without the need for escalation to a tribunal.
• Restoring the status of codes of practice to what they were in the previous Workplace Health and Safety Act 1995 (Qld), including reviewing codes of practice every five years and mandating that safety measures in a code of practice must be followed unless equal or better than measures are demonstrated. 
• Prohibiting enforceable undertakings being entered in to, in lieu of prosecution, for contraventions of the Queensland WHS Act involving a fatality.
• Enhancing the role of health and safety representatives and mandating new training requirements, and requiring PCBUs to provide the regulator with a list of their health and safety representatives.
• Reintroducing the role of Workplace Health and Safety Officer. Appointment of a Workplace Health and Safety Officer is optional under the Bill, however the Bill encourages it as this may be used as admissible evidence in Queensland WHS proceedings.

The Bill has been referred to the Finance and Administration Committee for consideration. We will continue to update you with its progress and the impact it may have upon your organisation.

We recently attended a legal forum hosted by SafeWork NSW (SafeWork), where Peter Dunphy (Executive Director), Rick Bultitude (Director of Investigations and Emergency Response) and Karen Lockerby (Head of Legal) shared valuable insights into the regulator’s focus areas and priorities for the next six years under its new Work Health and Safety Roadmap 2022.

Key messages from SafeWork included: