By Ross Levin, Partner, Malcolm Davis, Partner, Adam Lunn, Partner and Lisa Anaf, Partner
With the election of a Labor government in Queensland, it would seem that the area of workplace health and safety may be due for another shake up.
As part of its policy platform at the last State election, the ALP promised to:
- prioritise and improve workplace health and safety;
- empower Work Health and Safety (WHS) representatives to have the ability to direct dangerous workplace activities to stop; and
- restore the former role of WHS permit holders (i.e. union officials), by permitting them to inspect and assess potentially unsafe sites, investigate incidents and assist in preventing workplace injuries (part of which would be to enable them to obtain immediate access to a worksite).
In 2011, the uniform Work Health and Safety Act was introduced into Queensland, with mirror legislation being introduced into other Australian jurisdictions.
One of the big changes that came with the new legislation was that the reverse onus for offences was changed. This meant that previously it was very difficult for employers to successfully defend prosecutions.
With the change in the reverse onus for such offences, the employer/person conducting a business or undertaking, is afforded a presumption of innocence. The regulator now has to prove that the employer/person conducting a business or undertaking did not take “reasonably practicable” measures to ensure workplace health and safety. Understandably, due to the increased burden placed on the regulator, one would think that the number of prosecutions under the more recent legislation would have been reduced significantly.
Anecdotal evidence would also suggest that even with the broad reduction in prosecutions brought on by the Work Health and Safety Act, the number of prosecutions occurring in Queensland has been significantly less than in comparable jurisdictions.
Although recent prosecution statistics are not readily available, one of the last quarterly reports issued by the regulator shows that the number of investigations into workplace incidents was 1,017 in the 2011/12 financial years, but was down to 606 in the 2012/13 financial years.
In terms of notifiable fatality statistics for the year up to October 2014, Queensland came second with 28 fatalities (compared to New South Wales with 35 and Victoria at 15) giving it the highest proportional fatality rate in Australia.
With such statistics in mind, and noting the tenor of Labor’s policy, it would appear that there is a fair likelihood that investigations and prosecutions are set to rise.
Businesses need to be prepared for these challenges. They also need to ensure that not only are their work health and safety systems in order, but that if a workplace incident occurs and an inspection and investigation by the regulator is set to ensue, expert advice is obtained immediately.