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 o rn i n g , D i r e c t o r , R eg u l a t o ry S t ra t egy a n d B o 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 o n 3. SIA Events Update J o K i t n e y , B r i s b a n e R eg i o 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 operators 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 of 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 ork 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 osterin ing a cu cult lture of of 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
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