What’s been happening?
The model Work Health and Safety Act (Model Act) has been in effect in a number of jurisdictions since 2012 (with a slightly later start in Tasmania and South Australia). Victoria and Western Australia have made no commitment to follow suit. As time passes, the prospect of a truly harmonised and settled work health and safety scheme across Australia appears slim.
Another obstacle to achieving a uniform national WHS framework is the recent changes made to Queensland’s Work Health and Safety Act 2011, amending the union right of entry provisions. In addition, the Council of Australian Governments has called on the participating states and territories to review the effectiveness of the Model Act, which may result in further jurisdictional variations to the Model Act.
Although the legislative framework may be losing uniformity and is a little unsettled, this has not slowed down the activity of the regulators in enforcing safety.
In this update, we review the changes to the Queensland Work Health and Safety Act 2011, update on new Codes of Practice that have come into effect in New South Wales and Queensland and comment on some of the recent enforcement activity by the regulators.
Changes to Queensland’s harmonised WHS legislation
Queensland was the first state to adopt the harmonised WHS legislation with the passage of the Work Health and Safety Act 2011. However, recent amendments to this legislation mark a significant departure from the Model Act.
The Work Health and Safety and Other Legislation Amendment Bill 2014 (Qld) (Amendment Act) came into effect on 16 May 2014. The Amendment Act:
- Amends the union right of entry provisions.
- Removes the rights of health and safety representatives to direct workers to cease unsafe work.
- Removes the requirement on a person conducting a business or undertaking (PCBU) to provide to the regulator a list of health and safety representatives.
The most significant amendment is the new requirement for union officials to give at least 24 hours’, but not more than 14 days’, prior notice before entering workplaces regardless of the reason for entry, including if it is to investigate a suspected safety contravention.
This is a departure from the former rules which distinguished between entry for the purpose of investigating a suspected contravention which did not require notice, and entry for the purpose of consulting, advising or inspecting records which did require prior notice (more than 24 hours and less than 14 days).
These new right of entry provisions in Queensland are aligned with the union right of entry provisions contained in the Fair Work Act 2009 and are focused on minimising the potential for business interruption and industrial disputation arising from unions exercising rights of entry without notice for purported safety concerns.
While the rights of unions in Queensland to enter a workplace unannounced in respect of safety concerns may have been curtailed, employers should not assume that the regulator will afford them the same courtesy.
Inspectors appointed by the regulator in each jurisdiction have broad powers to monitor compliance with, and enforce, workplace health and safety laws. Inspectors can, among other things, enter a workplace, make enquiries at the workplace and inspect and examine the workplace and things (including documents, plant and equipment and substances). These powers can be exercised at any time and with or without notice.
What should you do?
If a union official or an inspector exercises their workplace health and safety rights of entry, it will be important that your managers and staff know how to respond appropriately and in compliance with the legislation. First impressions can last!
Tips for businesses for managing their right of entry obligations include:
- Educate key personnel on the rights of entry that union officials have and the rights of inspectors in respect of each jurisdiction in which your business operates.
- Appoint a management representative to liaise with the inspector or union official (as the case may be). Appoint a back-up for the times when the principal management representative is not available.
- Ensure the inspector or union official is accompanied at all times while at the workplace.
- Be co-operative but ensure you are aware of the rights of your organisation under the law and the limits to the rights and powers of the inspector or union official.
- Contact your legal representatives for guidance on what to do if an inspector comes knocking.
New Codes of Practice in Queensland and NSW
Codes of Practice (Codes) provide details on how to achieve the standards required under WHS legislation. While a person cannot be prosecuted for failing to comply with a Code of Practice, the regulators and the courts will have regard to Codes when deciding whether the relevant safety obligations have been discharged.
Codes of Practice have recently been adopted, modified or released in Queensland and NSW as part of the process of harmonising work health and safety laws, which included taking a nationally consistent approach to Codes.
On 30 May 2014, the new First Aid in the Workplace Code of Practice 2014 was approved. This Code is based on the national model First Aid Code of Practice with some minor variations.
Variations to the following Queensland Codes also took effect on 30 May 2014:
- Managing Noise and Preventing Hearing Loss at Work Code of Practice 2011;
- Foundry Code of Practice 2004;
- How to Manage and Control Asbestos in the Workplace Code of Practice 2011; and
- How to Safely Remove Asbestos Code of Practice 2011.
New South Wales
The following 12 new Codes came into effect in New South Wales on 18 July 2014:
What does this mean?
While some of the new and varied Codes have more relevance in the construction, electrical and manufacturing industries, the Codes such as First Aid in the Workplace, Managing Electrical Risks in the Workplace and Managing the Risks of Hazardous Chemicals in the Workplace will have broader application.
Businesses need to:
- review the new Codes and consider how they relate to the business or undertaking;
- review existing safety procedures and identify any gaps in the procedures in light of the information in the Codes;
- update safety controls, including safety procedures as necessary to maximise compliance with the new Codes;
- educate workers on the new Codes and how they apply to the workplace.
Enforcement activity: Compliance with notification obligations
Most businesses put a great deal of resources, time and effort into preventing safety incidents from occurring in the first instance. However, in the unfortunate event of a safety incident occurring, does your business know what to do?
One of the most important immediate steps for a business to take following an incident is to preserve the incident site until the inspector arrives on site or otherwise directs. There are limited exceptions to this, including to protect the health and safety of a person, provide aid to an injured person or to take essential action to make the site safe or prevent a further incident.
Failing to secure the site is an offence so it is important to know in advance when a site can be disturbed.
Another critical and immediate step a business must take when an incident occurs is to quickly determine if the regulator in the jurisdiction where the incident occurred needs to be notified and by whom. If a notification is to be made, it will need to happen immediately and in accordance with the requirements under the legislation.
Failing to notify a regulator of a ‘notifiable incident’ is an offence in all jurisdictions where the Model Act is in operation and under the Occupational Health and Safety Act 2004 in Victoria (OHSA) and the Occupational Safety and Health Act 1984 in Western Australia (OSHA).
Regulators take a dim view of the failure to notify. In Victoria, recent prosecution result summaries of the Victorian WorkCover Authority indicate that a current focus of the Victorian WorkCover Authority is ensuring that employers comply with the obligation to notify the regulator of ‘notifiable incidents’.
When and how to notify?
The obligation to notify the regulator of an incident only arises if the incident is a ‘notifiable incident’ as defined under the Model Act, OHSA or OSHA, as the case may be.
Generally speaking, a ‘notifiable incident’ is an incident which causes death, ‘serious injury or illness’ or is a ‘dangerous incident’. The legislation defines a ‘serious injury or illness’ and a ‘dangerous incident’.
Importantly, a ‘serious injury or illness’ is not limited to an injury or illness which is life threatening and does include any injury or illness which requires a person to have immediate treatment as an in-patient in a hospital. This means that it is possible for a broad range of workplace incidents to fall within the category of a ‘notifiable incident’.
The obligation to notify the regulator of an incident arises immediately upon becoming aware of the incident and can be made by telephone and/or in writing by the fastest possible means. In some jurisdictions, there is a specific obligation to notify the regulator in an approved form in writing within 48 hours following the immediate notification.
The method for notifying each regulator is well advertised by each regulator on their website. Links to each jurisdiction’s notification webpages are below. Businesses need to be familiar with the requirements for each of the jurisdictions in which they operate.
In addition to making the notification, a record of each notifiable incident is also required to be kept for at least five years from the day that notice of the incident is given to the regulator.
Tips for business
- Understand the notification requirements in the jurisdictions in which your business operates including when and who must be notified.
- Ensure immediate verbal notification is made as required. Consider taking urgent legal advice on the content and wording of the notification before making the notification to ensure an accurate and adequate notification is made.
- Ensure the proper written form for notification is used.