The Queensland Work Health and Safety Act 2011 (WHS Act) is currently under independent review to consider how effective the WHS Act really is.
Former Deputy Director General of the Office of Industrial Relations Craig Allen will be at the helm of the review, alongside former Deputy President of the Queensland Industrial Relations Commission Deirdre Swan and well recognised Industrial Relations Barrister Charles Massy.
When asked what the review would encompass, Industrial Relations Minister Grace Grace had this to say, “The review will also have a strong focus on consultation with stakeholders including industry groups, employers, registered industrial organisations, the legal profession, academics, and government agencies.”
Who is covered by the Act?
The WHS Act affords employers and employees legislative protection against the many hazards one faces within the workplace. The Act effectively protects the following parties under a clear legislative framework:
- Apprentices and trainees
- Work experience students
- Employers who perform work
While employers who perform work are covered under the Act, a duty of primary health and safety is placed on the owner of the business or the employer. What does this mean? Well put simply the employer/ business owner is required by law to ensure that as so far as is reasonably practicable the health and safety of workers at the workplace.
What are the Proposed Amendments?
While no specific details have been provided as to the exact amendments set to be placed forward in this independent review, The Honourable Ms Grace has stated “Five years on, it’s time to ensure Queensland’s laws remain robust, effective and enforceable.”
The Office of Industrial Relations review is to look at the overall effectiveness of the key components of the Act in achieving its objects with specific consideration of the following elements:
- the appropriateness of WHSQ’s Compliance and Enforcement Policy
- the effectiveness of WHSQ’s compliance regime, enforcement activities, and dispute resolution processes
- WHSQs 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
- any further measures that can be taken to discourage unsafe work practices, including the introduction of a new offence of gross negligence causing death as well as increasing existing penalties for work-related deaths and serious injuries.
What effect will the review have?
Looking at some of the comments raised by the Honourable Ms Grace it appears as though this review may introduce amendments which broaden the scope of not only who is covered, but what reasonable steps an employer must take in order to ensure that the required duty of care has been met. When looking at the reasonable requirements an employer must meet under the Act there are key elements, namely:
- The likelihood of the hazard or the risk concerned occurring; and
- the degree of harm that might result from the hazard or the risk; and
- what the person concerned knows, or ought reasonably to know, about— the hazard or the risk; and
- ways of eliminating or minimising the risk; and
- the availability and suitability of ways to eliminate or minimise the risk; and
- after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 
It is a possibility that the review will focus on expanding these elements, therefore allowing employees further access to claims where previously this would not have been considered. This means harsher penalties for employers who fail to fulfil their obligations under the act, as well as more factors to consider when deeming a workplace environment as safe.
 Work Health and Safety Act 2011 (QLD) at s 18
What Can Employers and HR Do?
Training, implementation and Policy!
In an everchanging landscape of legislation and requirements, employers are faced with the difficult task of juggling all the requirements to imposed on them to avoid the lodging of a potential claim.
Luckily there are a series of general rules which any employer can follow in order to mitigate risk and maximise the safety of their workplace.
- Firstly, ensure all employees are provided ongoing training, supervision and instruction required to ensure safety within the workplace
- Secondly, ensure the worker’s compensation policy is up to date and a return-to-work plan and process is updated
- Thirdly, all facilities are well maintained and meet the acceptable standard for use
- Fourthly, check in with employees and keep a look out for their health and the conditions imposed on them in the workplace – mental illness in particular is one to look out for and put in place preventive measures
- And finally provide employees with an avenue to express any grievance or concern they may have with the health and safety of the workplace
Concerned you may not be following one of these general rules or are seeking advice on how to better handle the policies within your workplace?
At NB Employment Law (formerly NB Lawyers), we offer an obligation free consultation – please call +61 (07) 3876 5111 to arrange an consultation to discuss your inquiries and we will do our best to provide a helpful, practical solution.
Jonathan Mamaril, Director
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
Dan Chen, Associate
Dan Chen is an Associate at NB Employment Law, the lawyers for employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large, and understand their obligations under Australia’s complex workplace relations system. His vast experience in General Protections, Unfair Dismissal and grievance handling is sought after by clients and is also fluent in mandarin.