WHS Legal Update WELCOME Brisbane Region Meeting 30 April 2019 - - PowerPoint PPT Presentation

WHS Legal Update

WELCOME

Brisbane Region Meeting – 30 April 2019

Brisbane Region Representatives

Jo Kitney Jane Willis Cameron Caldwell

SIA Brisbane Region

• Range of events and venues
• Meetings and site visits
• Networking and celebrations
• Region representatives

Our host:

Deanna McMaster, Partner

MinterEllison

www .minterellison.com

Presentations

• 1. WHS iInQueensland –a view from

the Regulator

P e t e r Th

• rn

i n g , D i r e c t

• r

, R eg u l a t

• ry

S t ra t egy a n d B

• a

rd I S S C S e rv i c e s , W H S Q

• 2. WHS Legal Update

D e a n n a M c M a s t e r , P a rt n e r , M i n t e r E l l i s

• n
• 3. SIA Events Update

J

• K

i t n e y , B r i s b a n e R eg i

• n

R e p r e s e n t a t i v e

• 1. WHS in Queensland

– a view from the Regulator

Peter Thorning

Director , Regulatory Strategy and Board/ISSC Services, WHSQ

Work Health and Safety in Queensland

A view from the regulator – post Best Practice Review Peter Thorning Director, Regulatory Strategy and Board/ISSC Services Workplace Health and Safety Queensland

Tragic Events of October 2016

Eagle Farm construction site 6 October 2016

ABC News (2016) http://www.abc.net.au/news/2016-10- 08/workers-walked-off-job-before-eagle-farm- construction-deaths/7915804

Dreamworld theme park 25 October 2016

The Conversation (2016) http://theconversation.com/deat hs-at-dreamworld-theme-park- could-lead-to-safety-changes-for- amusement-rides-67701

Best Practice Review Context

 Dreamworld and Eagle Farm  Six years of harmonisation – many stakeholders still hold the view that

Queensland was short-changed (WHSOs and CoPs)

 Concerns that WHSQ’s regulatory pendulum had swung too far towards

encouraging and assisting compliance

 Tightening fiscal environment and highly controlled FTE count  WHS Board and Industry Committees not being fully engaged  Broadening of government’s advisory base – not limited to public sector  Changing societal views – expectations of tighter regulation and

active/empowered regulators

 Banking Royal Commission  Aged Care Royal Commission

Best Practice Review – Terms of reference

 Conducted by Independent Reviewer: Mr Tim Lyons  Between April and July 2017  Terms of Reference

 The appropriateness of WHSQ’s compliance and enforcement policy  The effectiveness of WHSQ’s compliance and enforcement activities  WHSQ’s effectiveness in relation to providing compliance

information and promoting work health and safety awareness and education

 The appropriateness and effectiveness of the administration of

public safety matters by WHSQ

 Further measures that can be taken to discourage unsafe work

practices

58 recommendations

Compliance

 Need to re-balance towards directed compliance  Queensland specific compliance and enforcement policy

 Sufficient detail about enforcement actions to be utilized  Directed compliance as vital, widely available tool

 Better metrics for regulatory/inspectorate activity  Inspector qualifications, competencies, visibility  Staffing model which keeps pace with increases in

economic activity, population growth and regulatory responsibility.

 Licensing…competency  Health and safety representatives

Investigations and sanctions

 Industrial manslaughter offence  Creation of Officer of WHS prosecutor  Appointment of an independent WHS prosecutor  Increased data analytics and reporting of investigations and

prosecutions

 Better use of this data to guide WHSQ’s intervention activity

WHS Board to …

 develop a five year plan and include inspectorate activity as a

core element

 monitor WHSQ activity (including directed compliance) and report

to WHSQ and Minister

 monitor patterns and trends of prosecutions  monitor implementation of new ICT system

Representation and consultation

 Better support for health and safety representatives  Re-establish work health and safety officers, not mandatory but

potential use as evidence of duty holder mitigation of risks

Competency and legislative reform

 Competency of high risk work licence assessors  Better guidance for RTOs to support competency  Quality indicators relating to RTOs and their trainers

Competency and legislative reform

 Re-establish status of Codes of Practice (mandatory minimum

standard)

 Review of model national laws/harmonisation

 Reverse onus of proof  National data capture and reporting – improved Comparative

Performance Monitoring report

 Increased penalties

Public safety

 Stronger regulatory requirements for theme parks and other

• perators of amusement devices

 Mandatory major inspections  Competency of people conducting inspections  Competency/licensing of operators of amusement devices  Safety case requirement for operators of amusement devices

which are collectively high risk

 Work health and safety management system for operators of

amusement devices which are collectively high or medium risk

 Consideration of need for a Public Safety Ombudsman  Consideration of additional resources needed for regulation

• f public safety, particularly for tourism, services and health

care and social assistance sectors

Focusing on a couple of aspects…

Strategic Plan for WHS in Queensland Compliance and Enforcement Policy

BPR Recommendation Three

The Work Health and Safety Act 2011 be amended to require the Work Health and Safety Board to develop, monitor and review a five-year strategic plan, and consistent with its role in the WHS Act 2011, provide advice to the Minister on a more regular and systematic basis.

“ ”

Five Year Strategic Plan – launched Oct 2018

Embracing innovation

and technology

Designing healthy and

safe work

Fostering a culture of

health and safety

Regulating effectively

Strategic ic lever 1

Em Embracing innovati tion an and tech echnology

Partnerships and collaboration for WHS research, innovation and technology to achieve:

• Evidence-base to support new technology implementation and WHS innovation
• Queensland seen as a leader in WHS innovation
• Industry embraces innovative thinking and adopts innovation to improve WHS and productivity
• Recurring or persistent harms are tackled
• Reduced cost of WHS from a collective focus on innovation and technology
• Regulator embraces innovation and technology for itself and industry.

Str trategic ic lever 2

De Desi signin ing hea ealt lthy an and sa safe e wor

• rk

Partnerships and promotion of healthy and safe work design to achieve:

• High industry awareness of healthy and safe work design principles and benefits
• Significant industry uptake of healthy and safe work design including at conceptual stage
• The use of building information modelling (BIM) as a key design tool to identify WHS issues
• Gap between work as done and as imagined is closed
• A culture/mentality that identifies and implements controls that make a difference
• Higher order controls are the norm.

Strategic ic le lever 3

Fos

• sterin

ing a cu cult lture of

• f hea

ealt lth and sa safety

Partner, leverage, investigate and promote focus in the area of WHS culture to achieve:

• Agreed system of measurement of WHS culture
• Well engaged and thriving ISSCs who make significant leadership contributions
• Government as a WHS model client and employer
• Ongoing support for health and safety representatives and WHS officers
• Improved attitudes to WHS (as measured)
• Improved work culture (mental and physical)
• Increased awareness of WHS culture principles and benefits
• Increased awareness of work WHS resources available to support businesses
• Reduction in WHS harms.

Strategic ic le lever 4

Reg egula latin ing effectiv ively ly

Support, promote, leverage and defend effective regulation to achieve:

• Empowered and effective Workplace Health and Safety Regulator
• Fully implemented recommendations from the Best Practice Review of WHSQ
• Qualified inspectors with effective and consistent compliance and enforcement skills
• High performing team of inspectors state-wide
• Identifiable and accessible network of inspectors
• Increased adoption of advanced WHS systems
• Reduction in work WHS harms
• Increase in workplace wellbeing (mental and physical).

BPR Recommendation Nine

WHSQ develops a new policy in supplement to the NCEP, that provides sufficient detail about enforcement actions to be utilised in certain circumstances to ensure compliance. In developing the new policy it is recommended that WHSQ:



more precisely identify the use of “directed compliance” as a vital, widely available tool to ensure safe workplaces

 consult with stakeholders and the Work Health and Safety Board in

developing the new policy



publish the new policy on their website



review the new policy at least every five years



measure and report annually on compliance and enforcement performance against the policy



The WHS Board review WHSQ’s performance against the policy as part of their 5-year strategic plan, to ensure that WHSQ’s compliance & enforcement balance is continually monitored

“ ”

200 400 600 800 1000 1200 1400 1600 2005–06 2006–07 2007–08 2008–09 2009–10 2010-11 2011-12 2012-13 2013-14 2014-15

Improvement Notices per 10,000 businesses

New South Wales Victoria Queensland Western Australia South Australia Tasmania Why the focus on ‘directed compliance’?

200 400 600 800 1000 1200 2005–06 2006–07 2007–08 2008–09 2009–10 2010-11 2011-12 2012-13 2013-14 2014-15

Improvement Notices per 10,000 Businesses

New South Wales Queensland South Australia Why the focus on ‘directed compliance’?

BPR 9 also linked with

 BPR 1 - Rebalanced Compliance Approach  BPR 12 - Data Analytics and Reporting Metrics – Standardised Reporting Metrics  BPR 15 - Rebalanced Compliance Approach – Holistic Assessment Process  BPR 20 - Inspector Skills Development – Inspector Training  BPR 21 - Inspector Skills Development – Inspector Skills Identification  BPR 22 - Data Analytics and Reporting Metrics – Data Capture and Reporting  BPR 23 - Rebalanced Compliance Approach – Inspector Visibility  BPR 24 - Inspector Skills Development – Directed Compliance Comprehension  BPR 25 - WHS Board Five Year Strategic Plan – Inspectorate Activity  BPR 50 - HSRs – Support and Encouragement

New Compliance Monitoring and Enforcement approach…

 No advance notice of visits unless management approval is given –

“natural state” of workplace (exception limited circumstances)

 A breach, if not immediately remedied = an improvement notice  Immediate rectifications to be noted and recorded  Around 60 of the 240 WHS and ES infringeable offence identified as

“Priority”

 A breach on priority infringement list = an infringement notice  Failure to comply with Improvement Notice = Infringement  Better use of authorisations (i.e. HRW Licences) as a sanction  Integrating provision of advice and information with enforcement

Priority Infringeable Offences – 10 areas

Full list at: https://www.worksafe.qld.gov.au/laws-and-compliance/compliance-and- enforcement/compliance-monitoring-and-enforcement-policy

• 1. Non-compliance with an Improvement Notice
• 2. Incident Notification and Reporting
• 3. Consultation with workers
• 4. Safety Management – construction projects
• 5. Construction Work
• 6. General workplace management
• 7. Specific Hazardous Work
• 8. Licensed High Risk Work
• 9. Electrical Work
• 10. Electrical Licences

A breach on priority infringement list = an infringement notice

Greater focus on ‘duties-based’ or systematic work health and safety based contraventions

 PCBU - Primary duty of care (s19) (work environment without risks; safe plant and structures; safe systems of work; safe use, handling and storage of

plant, structures and substances; adequate facilities; provision of supervision, information, training and instruction; health and conditions monitoring)

 Officer duty (s27)  Consult with other duty holders (s46)  Consult with workers (s47)  Hazard Identification, Risk Management and Hierarchy of Controls

(Reg s34, s35, s36)

Inspector Guidance

 Priorities for enforcement action

 Any serious risk to health and safety  Action to be proportionate to the risk and circumstances

 Issuing and explaining notices

 Clear explanation of the contravention  Relevant legislative provisions  What compliance looks like (but not directing how to achieve it)  MAY provide practical guidance and support (by reference to reliable

information sources)

 Sustained compliance

 Improvement notices for systematic WHS management failure  Multiple hazard/risk contraventions should prompt enforcement of ‘higher

• rder’ provisions

Response to focus on ‘directed compliance’…

2000 4000 6000 8000 10000 12000 Improvement Notices Issued - Queensland

Dreamworld and Eagle Farm Oct 2016 Best Practice Review Report July 2017

Projected

31 March 2019

Industry focus

 WHSQ’s industry focus is guided by the Australian Strategy and

by our own “heat map” analysis of industry subsectors

Australian Strategy:

• Agriculture
• Road transport
• Manufacturing
• Construction
• Accommodation and food services
• Public administration and safety
• Health care and social assistance

Other industry sub-sectors from ‘heat map’ analysis (some examples):

• Waste industries
• Airport operations
• Goods and equipment rental
• Warehousing and storage
• Horse and dog racing
• Employment services
• Building cleaning, pest control,

gardening

Priority conditions

 WHSQ’s focus on priority conditions is informed by the Australian Strategy and

emerging issues

 musculoskeletal disorders (MSDs)  mental health conditions  cancers (including skin cancer and asbestos-related cancers)  occupational lung diseases (especially silicosis)  contact dermatitis  noise-induced hearing loss

 Significant focus on MSDs, mental health, asbestos and silicosis

Industries with significant public safety aspects:

 Theme parks and amusement device operators  Construction  Transport (but this dealt with by other regulators)  Major Hazard Facilities (hazardous chemical storage – schedule 15)  Large dangerous goods location (manifest quantity workplace)  Tourism – particularly diving and snorkelling, but also other adventure

tourism activities

 Electrical industries (particularly network)

Workplace Health and Safety Queensland's vision is that everyone will return home safely at the end of a day's work. “Work health and safety laws were established because our society believes it's important to protect workers and

• ther people against harm to their health,

safety and welfare from risks arising at work”

WHS Board (2018) Five-year Strategic Plan for WHS in Queensland

Questions?

• 2. WHS Update

– a Legal View

Deanna McMaster

Partner , MinterEllison

Safety Institute of Australia – WHS Legal Update

Deanna McMaster Partner 30 April 2019

Agenda

WHS legislative framework in the current regulatory climate Key cases Action items 1 2 3

WHS legislative framework in the current regulatory climate

Officer duty

Officers can be personally liable for not exercising their due diligence obligations even if the PCBU has not breached the WHS Act Officers have a personal positive duty to exercise due diligence to ensure compliance with WHS Act Officers will not be deemed to have committed an offence simply because PCBU has breached the WHS Act

Exercising due diligence

Knowledge of health and safety Understanding

• perational

risks Ensure appropriate resources Processes for receiving and responding Verifying compliance

Changes arising from the Best Practice Review

Reintroducing Workplace Health and Safety Officers Commenced 1 July 2018 Issue resolution amendments Commenced 13 November 2017 Formally restricting availability of enforceable undertakings Commenced 23 October 2017

Prohibition on insurance for penalties

Increasing support for Health and Safety Representatives Commenced 1 July 2018 Restoring the status of codes of practice Commenced 1 July 2018 Independent statutory office for WHS prosecutions Date to be fixed

Industrial Manslaughter

A PCBU or senior officer commits an offence if:

The person’s conduct causes the death of the worker (i.e. substantially contributes) A worker dies in the course of carrying

• ut work for the business/undertaking,
• r is injured and later dies

The person is negligent in respect

• f causing the death of the worker,
• r another worker by the conduct

New offence is a

crime

Standard for criminal negligence applies

Beyond reasonable doubt

Maximum penalty

20 years imprisonment (individual) OR 100,000 penalty units, up to $10,000,000 (body corporate)

Industrial Manslaughter (cont)

Senior officer

Executive officer (however described) A person who is concerned with, or takes part in, PCBU’s management

Officer

Director, secretary A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of PCBU

National Review of model WHS law

Report

Report from first national review of model WHS laws released on 26 February 2019

196 page report

Outcomes

Key recommendations address:

• Regulations for psychological health
• New gross negligence cat 1 offence
• New IM offence
• Increase penalty levels
• Prohibit insurance for WHS fines

Next steps

WHS Ministers are expected to respond later this year

34 recommendations Further change possible

Key issue: insurance cover for WHS penalties

Current position

• Currently, no express

provision for insurance against penalties under WHS Act Review findings

• Undermines

sentencing process

• Undermines deterrent

effect of regime

• Likely to have

detrimental impact on workers as no fear of consequences Recommendations

• Amend safety legislation

to prohibit insurance covering WHS penalties and fines

• Contravening of

prohibition on insurance should constitute an

• ffence
• This recommendation

was endorsed in the 2018 National Review

Key issue: psychological health

• Amend model WHS Regulations to address how to identify the psychosocial risks

associated with psychological injury and the appropriate control measures to manage those risks National Review recommendation

• Many organisations find psychological health difficult to manage and are uncertain

about how to address it in the workplace

• SIA submission on this issue provided that lack of regulations hampers inspectors’

abilities to enforce the duty to ensure health and safety

• Submissions identified a need for ‘architecture’ to build on foundations of WHS Act

Reasoning

Recent cases

Increased regulatory activity

First case of director being imprisoned for WHS breaches in Qld Increase in issue of improvement notices including to officers Complaints Notices Prosecutions Anecdotally, a substantial number of complaints waiting to be issued by WHSQ

Dreamworld coronial inquest

• 26 October 2018 - Four people killed on

Thunder River Rapids Ride, when the raft they were riding in collided with another raft and flipped up vertically, throwing them from the ride

• Dreamworld shut down for 45 days

following the accident

• Coronial inquest evidence heard in June,

October and December 2018. Evidence before the inquest included… 6 recent failures of ride pump Two emergency stop buttons – operators not adequately trained to use them No alarm to signal pump failure despite recent safety upgrade Multiple previous collisions and incidents Budget cutbacks in repairs and maintenance 7 months prior to accident.

Eagle Farm fatalities

Incident

• Two construction workers at Eagle Farm Racecourse were fatally injured

working in an excavation pit

• Workers were assisting in the correct positioning of 14 tonne concrete panels

being lowered by a crane

Charges

• Individual in charge was charged with manslaughter (by QPS) and cat 1
• ffence. WHS offence on hold.
• Principal contractor charged with cat 1 offence. Entered into a guilty plea for

a lesser offence and fined $405,000

• Crane operator charged with two charges of not adhering to reasonable and

accepted safe practices. Charges since dropped

• Director of principal contractor charged with breaching his officer duties.

Charges since dropped

• Site manager charged with two duty of care breaches

Queensland fatality – Multi-Run Roofing

A roofer fell 6 metres to his death when working on the edge of a roof The roofer was working without appropriate fall- prevention equipment

Director sentenced to 12 months’ imprisonment (suspended after 4 months) and company fined $1 million

Multi-Run Roofing was installing roof sheeting

• n a shed

Victorian fatality – Recycling Emporium scrap metal yard

No attempt to secure bin to forklift and forklift

• perating on uneven

ground Court held risk of death

• r serious injury to

persons in vicinity of forklift

Director sentenced to 6 months’ imprisonment and fined $10,000

Director operating a fork lift dropped metal bin on worker’s head causing death

Canberra fatality - University of Canberra Hospital construction

Crane being used to move 11-tonne generator overturned Multiplex was principal contractor RAR Cranes was the subcontractor Crane driver charged with manslaughter under ACT criminal legislation

Category 2 charges against Multiplex’s Site Manager and CEO and RAR’s Managing Director

Category 1 charges against Multiplex and RAR Site personnel Worker was killed at University of Canberra construction site

Key action items

For organisations…

Review governance structure

Do you have an incident reporting system? Is it regularly reviewed? Does it work well? Do you have a team or teams dedicated to safety that are appropriately resourced?

Review safety and environment culture

Are health and safety issues and compliance discussed at all levels of the

• rganisation (executive and non-executive?)

Do workers feel safe to report safety incidents?

Ensure

• fficers are

trained

Is the flow of safety information to officers adequate? Are officers trained in respect of their due diligence obligations? See next slide

For officers…

Regularly make time for discussion on emerging issues Ensure WHS issues are raised at executive level Understand key risks and hazards in organisation

Appoint a staff member who takes responsibility for reporting

Audit safety management systems annually against relevant laws Ensure any reportable incident is raised directly to its Officers immediately

Review data and question anything that does not look right

Understand where concurrent duties apply with third parties Ensure safety management systems address risks and that reporting is in a timely way Attend regular briefings Be alert to trends

• r recurring

issues as this may indicate a problem

Key contacts

Deanna McMaster Partner T +61 7 3119 6126 Rhian O’Sullivan Senior Associate T +61 7 3119 6463 Samantha Betzien Partner T +61 7 3119 6429

• 3. SIA Events Update

SIA Brisbane Region SIA National H&S Conference SIA Qld Visions Conference

https://www.sia.org.au/events

SIA Events

https://www.sia.org.au/events

SIA Brisbane Region

SIA National Conference

https://sianationalconference.com.au/ https://www.sia.org.au/events

Qld Visions Conference

https://www.visions.org.au/

Thank you

Deanna McMaster, Partner

MinterEllison

www .minterellison.com

safety-institute-of-australia @SIA_OHSProf SafetyInstituteofAustralia www.sia.org.au