Review of Work Health and Safety Laws in QueenslandSchool Safety Conference

September 2013Presenter: Cath RaffertyTeam Leader, Operational Policy, WHSQ

Who has harmonised?

• ACT, Commonwealth, NSW, NT, Queensland, South Australia and Tasmania – all working from harmonised laws from 1 January 2013

• Western Australia – supports harmonised laws, but will not adopt some elements and will not adopt until it is in a position to introduce separate mining safety laws and regulations

• Victoria – supports the principle of harmonisation but will not adopt at this time citing cost to small business of transitioning to the new legislation

Update - Primary duty of care“As far as is reasonably practicable”

• Under the previous regime, the person conducting a business or undertaking (PCBU) had an absolute duty of care to ensure the health and safety of workers and other persons – more prescriptive;

• Under the new Act, the primary duty of care is qualified by ‘reasonably practicable’ – more outcome orientated.

• The person conducting the business or undertaking (PCBU) must ensure, so far as reasonably practicable, the health and safety of workers and other persons.

• In assessing ‘reasonably practicable’ the court will consider:– What the duty holder ought reasonably to know about the hazard

or risk;– The extent to which the duty holder has the capacity to influence

or control the matter;• Therefore, the duty holder must assess the likelihood of a hazard or

risk occurring and the degree of harm that might result before deciding what control measures, if any, are required to eliminate or minimise the hazard

Update of Officer Duties

• Officers must exercise due diligence to ensure that the person conducting a business or undertaking (PCBU) complies with the Act

• Represents a shift away from attributed liability (being held liable for contraventions by the company) which means that an officer may now be charged with an offence for a breach of the WHS laws independently of the PCBU

• ‘Officer’ includes (definition from Corporations Act 2001):– those persons involved in making decisions that affect the whole

or a substantial part of the business or undertaking (e.g. directors, company secretary, officeholder)

– receivers, administrators, liquidators

Officers – Due Diligence

reasonable steps to

acquire knowledge of WHS matters

understand nature of the operation and associated WHS hazards & risks

ensure resources and processes to eliminate or minimise WHS risks

ensure processes for receiving, considering and responding to WHS information in a timely way

ensure processes and implementation for complying with WHS duties

verify compliance

Consult, coordinate & cooperate

• The WHS laws have expanded the duty to consult and introduced new duties to coordinate and cooperate by persons conducting a business or undertaking (PCBUs)/organisations (schools):

• PCBUs/schools are required to consult, coordinate & cooperate where concurrent duties of care eg contractor management;

• PCBUs/schools are required to consult with workers on WHS matters;

• PCBUs/schools are required to establish issue resolution procedure to resolve issues in-house to prevent escalation of the issue beyond the workplace;

• Aim of Duty = Generate cultural change in an organisation by ensuring that all duty holders work together to deliver health and safety outcomes

What’s new in QueenslandReview of the WHS laws

• On 29 August 2012, the Attorney-General and Minister for Justice held an industry round table to discuss any issues surrounding the implementation and operation of the laws.

• The Government sought feedback on aspects of the legislation that are:

– unworkable or have unintended consequences,

– impose purely administrative burdens without providing clear safety benefits.

• The round table was attended by representatives from 18 Queensland employer associations and unions

Round table outcomes

Key outcomes identified by stakeholders were:

• Development of guidance on ‘reasonably practicable’ including the relevance of control

• Consideration of removal of ‘contractors and subcontractors’ from definition of “worker”

• Consideration of changes to “right of entry” powers of WHS entry permit holders (union officials) including whether these powers should be removed from the WHS Act

Round table outcomes

• Review of second stage model codes of practice in consultation with industry before being considered for implementation in Queensland

• Establishment of a working group to analyse the adoption of national model codes of practice regarding bullying/harassment and fatigue

• Establishment of a working group to analyse asbestos regulations and report back to Attorney-General

• Clarification of impacts of audiometric testing – which is the requirement to test workers for hearing loss under certain conditions in the workplace - industry recommended that provisions relating to audiometric testing be delayed until requirements clarified

Model codes of practice

• Queensland adopted the eleven first stage model codes of practice. These (and 24 preserved Queensland codes of practice) have been in force since 1 January 2012

• Queensland has not yet adopted any second stage codes of practice

• The second, third and fourth stage codes are undergoing further analysis and consultation to fully understand the impact of each code on Queensland stakeholders before adoption by Queensland

• Queensland’s preserved codes of practice continue to apply until they are replaced by agreed national codes

Model WHS Codes of Practice – Stage 1

11 Stage 1 model codes of practice• How to Manage Work Health and Safety Risks• Hazardous Manual Tasks• Managing the Risk of Falls at Workplaces• Labelling of Workplace Hazardous Chemicals• Preparation of Safety Data Sheets for Hazardous Chemicals• Confined Spaces• Managing Noise and Preventing Hearing Loss at Work• Managing the Work Environment and Facilities• Work Health and Safety Consultation, Cooperation and

Coordination• How to Safely Remove Asbestos• How to Manage and Control Asbestos in the Workplace

Model WHS Codes of Practice – Stage 2

12 Stage 2 model codes of practice• First aid in the workplace • Managing risks in construction work • Preventing falls in housing construction • Managing electrical risks at the workplace • Managing risks of hazardous chemicals• Managing risks of plant in the workplace • Safe design of building and structures • Excavation work • Demolition work • Spray painting and Powder Coating• Abrasive blasting • Welding

Model WHS Codes of Practice – Stage 3/4

Ready for approval by the Select Council on Workplace Relations (Ministerial Council)

• Working in the vicinity of overhead and underground electric lines• Safe design, manufacture, import and supply of plant • Traffic management in workplaces • Amusement devices • Scaffolds and scaffolding work • Tree trimming and removal work - crane access method • Industrial lift trucks • Formwork and falsework • Managing risks of plant in rural workplaces • Cranes • Managing risks in forestry operation

Model WHS Codes of Practice – public comment

In relation workplace bullying and fatigue model codes of Practice:• Preventing and Responding to Bullying in the Workplace and

the accompanying Guide for workers– • Public comment closed on 15 July 2013

• However, SWA members are still finalising the outcome and the final product has not yet been agreed

• Current Queensland code continues to apply at this point – ‘Prevention of workplace harassment’

• Fatigue code of practice – has been changed to a guide following stakeholder consultation with Safe Work Australia

Delayed transitional arrangements

• At the industry round table, stakeholders raised concerns about some provisions of the WHS Regulation that have not commenced yet.

• To provide certainty to all stakeholders, these provisions were further delayed until 1 January 2014 so that any proposed changes resulting from the roundtable could be considered in detail. • s58 - audiometric testing• s217 - protective structures on earthmoving machinery• ss425 and 429 - asbestos registers and asbestos management plans (relating

to buildings built between January 1990 and December 2003)• ss432-433 - asbestos management plans for naturally occurring asbestos• part 8.5, division 1 (ss435-444) – health monitoring for those at risk of

exposure to asbestos• s779 – design registration of concrete placement booms and prefabricated

form work.

Delayed transitional arrangements

• The following WHS Regulation provisions were also delayed until 1 January 2014 to allow stakeholders more time to comply:• s48 - remote or isolated work• s272 – changing the duration of plant registration to 5 years• some high-risk work provisions (e.g. application of non-slewing

mobile crane licences etc)

Second Industrial Roundtable

• Recommendations from the outcomes of the first roundtable were presented to a 2nd industry roundtable held by the Attorney-General and Minister for Justice on 11 July 2013 attended by industry and union stakeholders

• The recommended outcomes are currently being considered by the Queensland Government but are not publicly available at this time.

• However, watch this space for further developments

Office of Best Practice Regulation

• A 2nd review that could impact on WHS laws is the Qld Government’s red tape reduction plans

• The Queensland Competition Authority (QCA) has been investigating a framework for reducing the burden of regulation to align with the Queensland Government priority for a 20% reduction in red tape.

• The QCA’s interim report was released in November 2012 and identified WHS and workers’ compensation as potential priority areas for further investigation and action.

• The final report from the OBPR was released on 8 March 2013.

Office of Best Practice Regulation

• The Government is using the report to identify which of the potential reform areas will be pursued, and timelines for progress of review.

• A 15 month timeframe has been suggested for the investigation of alternatives to current WHS regulatory system.

• At this stage, the focus is on reducing administrative burdens on duty holders eg removing unnecessary reporting requirements or reducing the number of forms required to be completed

• But watch this space for further developments

Technical amendments

• At the same time, Safe Work Australia (SWA) is currently finalising technical amendments to the model WHS regulation to correct errors and remove unintended impacts.

• Amendments are mainly focused on areas such as:• Removal of requirement for roll-over protective structures (ROPS)

and falling objects protective structures (FOPS) on earthmoving equipment.

• Removal of requirement to design and item register inflatable amusement devices <3m in height

• Removal of the requirement for a HRW licence for loading and unloading of plant from transport vehicles

WHSQ has transitional arrangements and class exemptions for areasassociated with these amendments. These will remain in place until

the amendments are finalised nationally and enacted in Queensland.

Review of Electrical Safety Regulation

A 3rd review that may affect schools is the review of the

Electrical Safety Regulation 2002 (ES Regulation)

• The ES Regulation is scheduled to expire this year and must be reviewed

• Consultation Regulatory Impact Statement released from 28 March to 26 April 2013

• Over 1000 public submissions received

• Three options proposed:

– No regulation

– Remake 2002 regulation

– Make a 2013 regulation with red tape reductions

Review of Electrical Safety Regulation

• The preferred option includes the following red tape initiatives and is expected to deliver $348.4 million NPV in cost savings to Queensland businesses over 10 years:– limiting circumstances in which rescue and resuscitation training is

required for non-electrical workers in relation to low risk electrical work ($29.3 million);

– removing test and tag requirements for plug-in electrical equipment (up to 20 amps) where it is protected by a safety switch ($308.9 million);

– removing current restrictions on the type of work that may be undertaken by electrical apprentices and trainees in the first six months of their training, so they can undertake the work if they are competent ($9.5 million); and

– removing registration requirements for cathodic protection (corrosion prevention) systems powered by extra low voltage ($657,000).

However, this option has not been adopted at this stage so again, watch this space for further developments

Common issues affecting schools

This is a reminder of the WHS laws in relation to

the following:

• Incident notification

• Contractor management

• Employer accommodation

• Remote and isolated workers

Incident notification

What needs to be notified?• Arises out of the conduct of a business or undertaking; and• Incident results in death, serious injury or serious illness of a person; or • Involves a dangerous incident (that exposes a worker or other person to

a serious risk)

What is ‘serious’?• Not defined by the Act or Regulations• Ministers agreed that notification would be of incidents that were the most

serious in nature - this was to reduce the burden on PCBUs• Linked to section 39 – duty to preserve incident site• ‘treatment’ – is medical treatment by a registered medical practitioner

Incidents in playgrounds

• In applying the criteria of notifiable incident, an illness or injury must arise out of ‘work conducted by a business or undertaking’

• WHSQ considers that a notifiable incident for a school must be the result of a work activity at the school (eg a student losing part of a finger from a bandsaw used in a manual arts class)

• Student’s free play at recess in a recess period is not necessarily part of the conduct of the business or undertaking of a school

• In this case, a playground incident would not be considered to be ‘arising from the conduct of a business or undertaking’ and therefore not notifiable to the regulator.

• However, Safe Work Australia is working with all regulators to develop guidance material on what’s in and what’s out in terms of public safety, schools and notifiable incidents

• Remember that ‘Notifiable Incident’ is linked to section 39 – duty to preserve incident site

Contractor Management

New provision for Queensland in section 46 of the WHS Act that:

• Duty holders must consult, cooperate and coordinate activities

with all other persons who have a duty in relation to the same

matter.

Each PCBU must ensure elimination or minimisation of risks to health

and safety – in managing multiple contractors on site this means:

• The responsible person must ensure these requirements are met

even if others also have the duty to do so.

• To achieve the outcomes, the duty holder is not necessarily required

to take action themselves but must ensure that another person is

doing so.

Consult, cooperate, coordinate1. Share information - What hazards and risks exist in the workplace and

what hazards and risks will the contractor bring to the workplace?

2 Discuss and agree controls

– How will risks be controlled?

– Who will be responsible for implementing the control?

– What paperwork needs to be in place?

– How should issues be raised during the work?

3 Monitor and review

– Is the work being carried out as agreed?

– Are controls in place?

– Are issues being managed?

– Have the right controls been selected?

Responsibility - worker accommodation

Primary duty of care under section 19 of the WHS Act covers worker accommodation:

• the PCBU must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety;

• This is a new duty under the Act and imposes a more prescriptive regime over worker housing

Remote or isolated work

This provision will come into effect on 1 January 2014 -

A duty holder must implement control measures that include effective communication with remote and isolated workers.

– remote or isolated work, in relation to a worker, means work that is isolated from the assistance of other persons because of location, time or the nature of the work;

– assistance includes rescue, medical assistance and the attendance of emergency service workers;

– the national model Code of Practice for Managing the Work Environment and Facilities provides detail on possible control measures.

More information

www.worksafe.qld.gov.au

1300 369 915

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