The Work Health and Safety and Other Legislation Amendment Bill 2023 (Bill) introduced to Parliament last month proposes a raft of significant changes to Queensland’s WHS Law.  Below, we unpack the top five issues that may, if the Bill is passed, impact your business.

1. Insurance for WHS fines banned

The Bill proposes new restrictions on how companies and individuals can take out insurance to protect themselves and their officers from liability for non-compliance with WHS laws.  There are some transitional provisions which will apply.  The Bill does not apply these restrictions to Queensland’s resources safety laws.

2. Category One offence is reckless and negligent

The Bill proposes to add a new fault element to Category One offences in addition to recklessness: negligence.  The explanatory notes state ‘unlike recklessness, the fault element of negligence does not require the prosecution to prove that the offender had a subjective awareness that their conduct posed a substantial risk of death or serious injury or illness and continued on with their conduct regardless.’  This will make it easier to prosecute Category One offences.

In short, if negligence causes the death of a worker, that can be industrial manslaughter ($10 million for a body corporate and 20 years imprisonment for an individual).  If a breach of the WHS Law exposes someone to a risk of death or serious injury, and involves negligence, that can be a Category One offence ($3 million for a body corporate; $600,000 and/or 5 years imprisonment for an officer; or $300,000 and/or 5 years imprisonment for a worker).

3. Annual invitations to elect Health and Safety Representatives (HSR)

HSRs are elected by workers and have strong powers, including the ability to issue provisional improvement notices and issue cease work directions.  Currently, a worker must ask a PCBU to conduct an HSR election.  The Bill proposes an obligation on a PCBU to, on an annual basis, advise workers of:

  • their right to request an election for an HSR and set out the process;
  • confirm who can represent workers in negotiations (e.g., a union);
  • the powers and functions of an HSR; and
  • invite workers to ask for an HSR.

4. Cease work directions

An HSR has always had the power to direct workers to cease work if they have a reasonable concern that the work would expose persons to a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard.  The Bill proposes several significant changes, including:

  • an HSR can issue a cease work notice to a PCBU and the PCBU must direct its workers to cease work; and
  • a cease work notice continues in force until:
    • it is withdrawn by the HSR or the issue is resolved with the assistance of a WHSQ inspector;
    • a WHSQ inspector issues a prohibition notice; or
    • the QIRC decides or deals with the dispute.

All these appeal processes take time.  This means a PCBU may have work cease, at the direction of an HSR, for a long period of time until WHSQ or the QIRC intervene.

5. Larger union presence and decision-making power

The Bill will restrict the number of entities that may represent workers in relation to WHS issues (e.g., excluding red unions).

For some WHS issues, workers will no longer have to identify themselves as a member of a union before a union can participate as a representative of the worker.  Instead, unions will be able to directly participate.  Further, where a union is a party to WHS consultation, the PCBU must carry out the consultation only at the time and place agreed to by the parties (e.g., the union).

Unions will be allowed to seek orders from the QIRC in relation to a civil penalty contravention (e.g., right of entry breaches).  This comes alongside a moving of jurisdiction for WHS civil penalty matters from the Magistrates Court to the QIRC.

Are you ready?

The Bill is not yet law and has been referred to the Education, Employment and Training Committee for detailed consideration.  However, with no senate in Queensland and an election looming, these changes could be law very soon.  If you have any questions, or require any assistance, please don’t hesitate to contact our team of experts.