Queensland Bill proposes reforms to Black Lung compensation, post-incident support and electrical safety licencing issues

WHO SHOULD READ THIS

• Electrical and mining industry stakeholders (especially coal); coal port, coal transport and coal fired power station stakeholders.

THINGS YOU NEED TO KNOW

• Queensland legislative reforms are proposed to improve access to compensation for ‘black lung’ and other dust lung disease sufferers; to introduce a consultative committee about support for persons affected by work-related serious injuries/illnesses and fatalities; and to allow safety information to be considered as part of electrical work licencing.

WHAT YOU NEED TO DO

• The Bill has been referred to the Finance and Administration Committee, who are due to report back by 11 August 2017.
• Mining industry stakeholders need to understand the proposed changes to compensation and how it may affect premiums.
• Electrical work licence holders need to consider how a serious work health and safety incident might affect their ability to continue holding a licence and, given this prospect, ensure there are systems in place to meet statutory requirements.

Compensation regime for coal workers’ pneumoconiosis (‘black lung’) and other dust lung diseases

In the wake of the initial report handed down on 29 May 2017 by the Queensland Parliamentary Coal Workers’ Pneumoconiosis Select Committee, the Workers’ Compensation and Rehabilitation (Coal Workers’ Pneumoconiosis) and other Legislation Amendment Bill 2017 (Bill) was recently introduced to the Queensland Parliament. Among other things, the Bill seeks to insert a new Subdivision to Chapter 1 of the Workers’ Compensation and Rehabilitation Act 2003 (Act).

The Act regulates statutory compensation and common law damages claims for injuries suffered by workers in the course of employment in Queensland.

The Bill proposes a new scheme for responding to ‘black lung’ and other dust lung diseases based on a new definition in the Act of ‘coal mine dust lung disease’, being a respiratory disease caused by exposure to coal dust. Examples of coal mine dust lung disease would include:

• chronic obstructive pulmonary disease
• coal workers’ pneumoconiosis
• dust-related diffuse fibrosis, and
• mixed dust pneumoconiosis.

However, the scheme is proposed to extend beyond workers who are directly engaged in coal mining and may therefore have significant effects on Queensland mining industry service providers.

Eligibility for assessment

The amendments include the creation of a ‘pneumoconiosis score’, which is a medically assessed score that grades pneumoconiosis disease based on changes shown on chest x-ray.

In order to be eligible for assessment of a pneumoconiosis score, the worker must show to WorkCover/the insurer that they were exposed to coal dust at their place of employment for a period of six months in total. The six month period does not need to be continuous and the source of the coal dust need not be directly related to coal mining.

Lump sum compensation for black lung sufferers

Further provisions in the Bill allow for a worker to receive up to $120,000 in lump sum compensation on a graduated scale and calculated on the basis of the pneumoconiosis score and the worker’s age at the time of lodgment.

An increase in the deduction from the maximum lump sum of $120,000 is made for each year after the worker turns 70.

Statutory compensation open ended and common law right of action preserved

Acceptance of the lump sum compensation will not preclude a worker’s ability to seek common law damages from their employer.

Also, if a worker’s condition deteriorates following the assessment of the pneumoconiosis score, the worker is entitled to further lump sum compensation to reflect this deterioration.

The ability to re-open a claim for compensation will extend not only to workers who have received a lump sum amount under these new amendments, but also to workers where:

• the worker has already received a settlement or judgment for damages
• the settlement or judgment does not include damages to compensate the worker for future progression of the injury, and
• at any time after the settlement is agreed, the worker’s pneumoconiosis score increases.

It is interesting to note that the Bill includes provision for settlements or judgments that do not expressly state that it includes damages to compensate the worker for future progression of the injury. In such circumstances, it will be taken that the damages did not include provision for future progression, and the worker will be able to re-open their claim to access the further lump sum compensation.

Workers who have already received a notice of assessment will be able to be reassessed in accordance with the Bill. The amount of compensation payable to workers who are reassessed for a notice of assessment, however, will have their increased amount of compensation payable reduced by:

• any compensation previously paid
• the amount of compensation paid under another law of Queensland, another State or the Commonwealth, and
• if a settlement or judgment amount has been determined, then the amount to which the worker would have been entitled in the initial notice of assessment.

Impact on premium for employees

Significantly for employers, the Bill as currently drafted would give power to WorkCover to charge an additional premium (at an amount determined by WorkCover) to employers who:

• before 1 January 2017, engaged a former coal worker to work in an industry that involved mining, loading, transporting or otherwise dealing with coal.

The term ‘former coal worker’ is defined as being workers who were employed in mining, loading, transporting or otherwise dealing with coal and who stopped working in the industry before 1 January 2017.

The Bill provides that the purpose of the increase in premium to employers involved in the coal mining industry, including relevant service providers, is ‘to cover the costs of administering the changes to the Act brought about by the Bill.’

Proposed new Consultative Committee

Aside from the workers’ compensation changes, the Bill proposes to establish a Persons Affected by Work Related Fatalities and Serious Incidents Consultative Committee (Committee) to provide advice and recommendations to the Minister about information and support needs for persons affected by a work-related incident resulting in death or serious injury or illness.

Establishing the Committee was an election commitment from the Palaszczuk Government. The aim of the Committee is to allow for broad representation from different industries to provide advice to the Minister and ensure health and safety regulators are given consistent information on how to improve procedures and practices when interacting with next of kin and other persons affected by a workplace incident causing a fatality or serious injury or illness.

Even though the Committee will be established under the Work Health and Safety Act 2011 (Qld), the Committee will consider the information and support needs of affected persons more broadly to include workplaces not covered by that legislation, for example, coal mines.

Electrical work licencing changes

If passed in its current form, the Bill will also make significant amendments to the Electrical Safety Act 2002 (Qld) to:

• allow the Electrical Safety Regulator to immediately suspend a person’s electrical work licence if the Regulator believes that the person may be responsible for electrical work that has caused a death or grievous bodily harm or have otherwise carried out electrical work that poses an imminent serious risk to the health or safety of any person
• allow the Electrical Safety Regulator to obtain further information from third parties about the competency of an applicant when deciding whether to grant a licence, and
• allow the Electrical Licensing Committee to direct an electrical work licence holder to undertake a competency reassessment where there are reasonable grounds to believe the licence holder may not be competent, which is similar to a requirement in the Work Health and Safety Regulation 2011 (Qld) for directing reassessment of competency for high risk work licence holders.

These changes reflect some similar changes proposed for other building licences by the Building and Construction Legislation (Non-conforming Building Products — Chain of Responsibility and Other Matters) Amendment Bill 2017.

The proposed changes would obviously tighten up existing licencing requirements, but would also significantly raise the stakes for licence holders involved in a serious safety incident, given that their ability to earn income as a licence holder may be affected.

Next steps for the Bill

The Bill has been referred to the Finance and Administration Committee who are due to report back by 11 August 2017. As such, there is some time for stakeholders to consider the impact of these changes and to lobby for changes.

If you require more information about the proposed changes, how they may impact you and strategies that might assist to mitigate their impact, please contact us to discuss. In the meantime, we will be following the passage of the Bill and providing further information as it becomes available.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.