Work Health and Safety Act 2011 Paul Goldsbrough - Senior Director Policy

1. www.worksafe.qld.gov.au Workplace Health and Safety Queensland Work Health and Safety Act 2011 Paul Goldsbrough - Senior Director Policy Workplace Health and Safety Queensland

2. Harmonisation across the jurisdictions • Queensland, NSW, ACT, NT and Commonwealth commenced harmonised WHS laws 1 January 2012 • Tasmania passed its WHS Bill which will commence on 1 January 2013 • South Australia introduced their Bill into Parliament and is waiting for their Bill to be debated • Western Australia is waiting until the model mining health and safety laws are finalised so that both sets of laws can be implemented at the same time • Victoria has completed their state-specific regulatory impact statement and will not implement at this time

3. Work Health and Safety Act 2011 The harmonised Queensland Work Health and Safety Act 2011 commenced on 1 January 2012 This Act: repealed the Workplace Health and Safety Act 1995 repealed the Dangerous Goods Safety Management Act 2001 as dangerous goods and major hazards facilities are dealt with under the Work Health and Safety Act 2011; ensures the Electrical Safety Act 2002 is consistent with the national model WHS Act (provisions remain un-commenced) Transitional provisions cover all matters from prosecutions, appointment of health and safety representatives, notices issued before the repeal, inspector appointments

4. Duties of PCBUs - What’s new A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers and other persons. Duty to consult, cooperate and coordinate activities with other duty holders who have duty in relation to the same manner (e.g. labour hire companies) Duty to consult with workers on a variety of matters including: Identifying hazards and risks and making decisions on ways to eliminate or minimise risks Decisions about adequacy of facilities Decisions on procedures e.g. consultation, issue resolution

5. Officers - What’s new Officers must exercise due diligence to ensure that the PCBU complies with the Act Represents a shift away from attributed liability (being held liable for contraventions by the company) ‘Officer’ includes (definition from Corporations Act 2001): those persons involved in making decisions that affect the whole or a substantial part of the business or undertaking (e.g. directors, company secretary, officeholder) receivers, administrators, liquidators

6. Officers – Due Diligence acquire knowledge of WHS matters reasonable steps to understand nature of the operation and associated WHS hazards & risks ensure resources and processes to eliminate or minimise WHS risks ensure processes for receiving, considering and responding to WHS information in a timely way ensure processes and implementation for complying with WHS duties verify compliance

7. Workers - What’s new Workers must exercise ‘reasonable care’ as opposed to not doing anything wilfully or recklessly Definition of ‘worker’ includes: an employee a contractor or subcontractor an employee of a contractor or subcontractor an employee of a labour hire company who has been assigned to work in the person's business or undertaking an outworker an apprentice or trainee a student gaining work experience a volunteer a PCBU if the person is an individual who carries out work in that business or undertaking

8. Offences Category 1: recklessly exposes a person to risk of death or serious injury or illness - $3M corporations; $600,000 individuals; 5 years imprisonment Category 2: serious risk of harm without recklessness - $1.5 million corporations; $300,000 individuals Category 3: fails to comply with WHS duty - $0.5 million corporations; $100,000 individuals Appeals to High Court of Australia Independent right of review when regulator does not prosecute for Category 1 or 2 offences – by the Director of Public Prosecutions

9. Designer duty – WHS Act Designers have a duty to comply with section 22 of the WHS Act and ensure, so far as is reasonably practicable, that the design is without risks to health and safety Consistent with requirements under the repealed WHS Act 1995 However previously designers of housing or ancillary buildings (class 1a and 10a structures) were exempt from designer duties under the repealed WHS Act 1995 Section 22 imposes duties on designers of any structure that is to be used or could reasonably be expected to be used as or at a workplace – e.g. a house under construction is a workplace for that phase

10. Designer duties – WHS Regulation Section 295 of the WHS Regulations specifies additional duties on designers of a structure to provide a written report to the PCBU commissioning the design where: the designer is aware of hazards that could create a risk to health and safety to persons constructing the structure; and these hazards are associated only with that particular design and not with other designs of the same type of structure.

11. When does section 295 apply to designers Duty to prepare a written report when the design client commissioning the design is a PCBU e.g. a corporation, an individual or person using an ABN or an owner-builder No duty to prepare a written report where the design client is not a PCBU not for a home buyer, owner or occupier commissioning work on their own home or DYI renovations/refurbishments

12. When does section 295 apply to designers Where a written report is required for a design client that is a PCBU, the designer is only required to provide a written report where: the design is unusual or atypical (associated only with the particular design and not with other designs of the same type of structure); and the design may create a risk to health and safety of persons constructing the structure For example structure (eg warehouse designed with cable-stayed roof instead of portal framed building); location (house designed to be built on bridge instead of flat land); materials (structure designed entirely of recycled materials); technique (telecommunication tower designed to be transported and erected using a helicopter instead of a truck and crane)

13. What should the written report address Any identified hazardous materials or structural features that are unusual Designer’s assessment of risk of injury or illness to construction workers arising from those hazards Designer to suggest ways or conditions to ensure that structure may be safely constructed A designer can contract a consultant to write the report but the duty of care remains with the designer Designer to provide written report to PCBU commissioning design before any construction work commences on the structure

14. Who is qualified to do a written report? Responsibility rests with a designer A designer is a person conducting a business or undertaking whose profession, trade or business involves them in: preparing designs for structures, including variations to a plan or changes to a structure, or arranging for people under their control to prepare designs for structures, or making design decisions that will affect the health and safety of others. For example architects, building designers, engineers, building surveyors, interior designers, landscape architects, town planners and all other design practitioners building service designers, engineering firms or others designing services that are part of the structure such as ventilation, electrical systems and permanent fire extinguisher installations contractors carrying out design work as part of their contribution to a project (for example, an engineering contractor providing design, procurement and construction management services)

15. When does section 295 commence? Section 295 took effect when the WHS Act commenced on 1 January 2012. This means that designs commissioned by a PCBU prior to 1 January 2012 do not have to comply with s295 If a designed is found to be in breach of s295 of the WHS Regulation, an inspector can issue a notice directing a written report be prepared or initiate prosecution action There are no exemptions to the written report (e.g. all single residential up to 3 storeys, multi-residential up to 3 storeys utilising typical construction parameters) - if the design features are atypical they will captured by the regulation

16. Further information www.worksafe.qld.gov.au Infoline 1300 369 915 sign up for eNEWS (free email subscription service) at www.worksafe.qld.gov.au