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Review of Workplace Health and Safety Enforcement Framework

In September 2007, Mr Robin Stewart-Crompton was commissioned by the Department of Employment and Industrial Relations to conduct an independent review into the current Workplace Health and Safety Enforcement Framework (the Framework) (PDF, 52 KB). The purpose of the review was to ensure the Framework remains relevant and that it continues to provide the necessary deterrence to breaches of Queensland’s workplace health and safety and electrical safety laws.

The review was based around terms of reference which included consideration of:

A reference group comprising members of the Workplace Health and Safety and Electrical Safety Boards and key industry stakeholders, representing employer and union representatives, provided guidance to the review.

Mr Stewart-Crompton consulted with a wide range of stakeholders including unions, the construction and building industry, employer associations, inspectors and other government agencies. Consultations were also held with the Chief Magistrate Judge Marshall Irwin, Industrial Court of Queensland President David Hall, and State Coroner Michael Barnes.

The review made 50 recommendations to either be implemented or to be further considered. The recommendations are outlined below.

Since completion of the review, the Federal Government has initiated a national review into model occupational health and safety laws. Mr Stewart-Crompton has been appointed to chair the national review panel. An interim report is due to the Workplace Relations Ministers’ Council in October 2008, with the final report due by the end of January 2009.

The Queensland Government will implement 43 of the 50 recommendations of the review, with the other recommendations being submitted for consideration as part of the national review.

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Recommendations to be implemented

Legislative amendments

R.17 The Industrial Court of Queensland should continue to have appellate jurisdiction and should have the power to impose or reimpose a sentence of imprisonment when hearing an appeal.

R.18 The Industrial Magistrates Court, rather than the Supreme Court, should have the power to make orders about compliance with prohibition and improvement notices.

R.25 The monetary penalties as specified in the Workplace Health and Safety Act 1995 (WHS Act) (PDF, 766 KB) and the Electrical Safety Act 2002 (ES Act) (PDF, 788 KB) do not need to be increased at this point, but the Director-General, of the Department of Employment and Industrial Relations (DEIR), should be required to provide the Minister with a report at least once in each three year period on whether any adjustments are required to the penalties and sentencing options that are provided under the legislation.

R.34 Where a report of a coronial inquest or inquiry, or proceedings at the inquest or inquiry, disclose that an offence has occurred under the WHS Act or the ES Act of the regulations, provision should be made to permit proceedings to be commenced within two years after the date of the report or the conclusion of the inquest or inquiry.

R.39 Victim Impact Statements may be prepared by an injured person or deceased person’s survivors and presented to court at sentencing stage.

R.40 The WHS Act and ES Act should either expressly set out the maximum monetary penalties for corporate offenders or include a note to explain that the Penalties and Sentencing Act 1992 (PDF 880, KB) multiplies the maximum fine provided for a natural person by a factor of five.

R.42 The shield of the Crown should not apply in relation to safety and health matters and s.3 of the ES Act should be amended accordingly.

R.43 The maximum period of imprisonment under the WHS Act and the ES Act for causing multiple deaths should be increased to five years and the relativity of other periods of imprisonment under the Acts should be reviewed.

In addition, the Review recommended further investigation of the introduction of Provisional Improvement Notices (R.45). Following consultation with unions and employers, it is proposed to introduce this provision as part of the proposed current amendments.

R.45 The Director-General, DEIR, should raise in the Australian Safety and Compensation Council (ASCC) the issue of how a nationally consistent approach to the issuing of Provisional Improvement Notices by Workplace Health and Safety Representatives could be achieved.

Legislative amendments requiring further consideration

R.9 Legal advice should be sought on whether inspectors are sufficiently indemnified against liability (s.183 of the WHS Act; s.205 of the ES Act) in circumstances where they have given advice to duty holders in relation to meeting obligations.

R.27 There should be an examination of whether the application of the Penalties and Sentencing Act 1992 (PDF 880, KB) to enforcement under the WHS Act and the ES Act has any unintended consequences.

R.31 Action to implement the Johnstone report on enforceable undertakings should be finalised.

Improvements to policies and administration

R.1 The Workplace Health and Safety Enforcement Framework (PDF, 52 KB) and the Electrical Safety Office (ESO) Prosecution Policy should be revised to make the policy aim of deterrence more explicit, including by setting out the range of penalties that may be imposed where there is a conviction and to clarify how the enforcement framework is integrated with the overall WHSQ and ESO strategies and business plans for securing compliance.

R.2 The revision of the documents should be used as a tool for raising awareness among duty holders of their obligations and the consequences of failure to discharge them.

R.4 The understaffing of the electrical safety inspectorate should be addressed as a matter of urgency and in this respect the Department may wish to consider approaches that are being taken in other States to attract and retain inspectors.

R.5 The training needs of inspectors should be reviewed to determine how to strengthen their education, advisory and auditing skills. This should be undertaken in the context of initiatives by Heads of Workplace Safety Authorities (HWSA) National Workplace Inspectors Training and Development Reference Group. Any necessary modifications should be made to the training programs.

R.6 To improve understanding of the role of WHSQ in securing public safety, more information should be available about this aspect of its work and the allocation of resources to it.

R.8 To improve the transparency of decisions about prosecutions, complainants and obligation holders should be informed in a timely way about progress on investigations and the reasons for decisions about taking or not taking action.

R.10 At least for WHSQ, to reduce any uncertainty about the roles and responsibilities of inspectors and to improve performance, consideration should be given to the separation of education and advisory functions from investigation and enforcement functions, with inspectors allocated to one or other area (and with periodic rotation).

R.11 Action to be taken to identify the needs of obligation holders (particularly small businesses) for advice, education and information, including by surveys.

R.13 Enforcement activities in priority industries should be benchmarked against other jurisdictions.

R. 14 There should be periodic examinations (e.g., as part of annual business planning) of whether the resources of WHSQ and the ESO are satisfactorily deployed to deal with safety issues in areas of precarious employment and in relation to vulnerable groups of workers, with benchmarking, if possible, against the use of resources for such purposes by other State regulators.

R.15 The outcome of enforcement activities and the lessons to be learned from them should be more effectively promulgated, including through industry associations, unions, industry media and OHS professionals.

R.22 Although the range of obligation holders does not need to be extended, more attention should be given to identifying, educating and, where there are breaches, taking enforcement action against upstream and other obligation holders who are rarely the subject of such action

R.23 In order to identify and overcome any technical, administrative or legal obstacles to securing compliance by all obligation holders, a systematic examination should be made of why there appear to be relatively few prosecutions of obligation holders apart from those who are most directly involved in a breach of the legislation.

R.28 In a suitable case, the prosecutor should present the Court with the arguments for a revision upwards of the penalties that are normally imposed and for a reconsideration of the factors currently taken into account in sentencing under the legislation.

R.32 The review, scheduling and implementing of the matters that may be the subject of infringement notices for breaches of the WHS Act and the ES Act should be regularly undertaken (at least annually).

R.35 The Industrial Magistrates Court should be encouraged in suitable cases to exercise its powers under s.53A of the Justices Act 1886 (PDF, 897 KB) to order mediation.

R.46 The proposed code of practice relating to the obligations of executive officers should be completed and given effect.

R.49 WHSQ and the ESO should analyse the difficulties in bringing risk focused prosecutions as a first step in developing, in consultation with the social partners, a systematic approach to the detection and prosecution of risk-based breaches.

R. 50 To improve accountability and foster ongoing cooperation, the various regulators in Queensland with complementary or overlapping responsibilities for work-related safety and health should include a description in their Annual Reports of how they have maintained and improved working relationships with the other regulators.

For further consultation and discussion

R.19 With discussion with the Attorney-General’s Department and the Department of Public Prosecutions, an examination should be made of the benefits of bringing more serious matters involving a fatality or serious injury before a superior court.

R.20 The Director-General, DEIR, should discuss with the Chief Magistrate how the Department can assist in informing Industrial Magistrates about matters relevant to the exercise of their jurisdiction in relation to prosecutions under the WHS Act and the ES Act.

R.21 The Director-General, DEIR, should discuss with the State Coroner how the Department can assist more effectively in coronial inquiries and in the dissemination of relevant findings and recommendations.

R.30 Consideration should be given to whether the approach taken to national audits and blitzes by HWSA could be adapted for electrical safety.

R. 44 Although an offence of industrial manslaughter is not recommended, the Director-General should raise in the ASCC the issue of achieving a nationally consistent approach to offences relating to work-related fatalities.

R.47 The Director-General, DEIR, should raise in the ASCC the issue of how a nationally consistent approach to the responsibility of corporate officers could be achieved, having regard to developments in relation to companies law.

R.48 The Director-General, DEIR, should raise with HWSA the question of how best to deal with problems associated with seeking to bring proceedings against an upstream duty holder who is located outside the State concerned.

For further consideration

R.3 Consideration should be given to seeking data about the deterrent effects of the policies and their application through periodic surveys of obligation holders.

R.12 Subject to the availability of resources, consideration should be given to enabling intermediaries (industry associations, unions, OHS professionals) to play a greater role in providing advice to duty holders on meeting their obligations.

R.24 When the outcome of the scheduled 2008 review by the National Transport Commission of the chain of responsibility provisions of the road laws is available, consider the implications for the regulation of obligation holders under the WHS Act and the ES Act.

Supported but no changes required

R.7 Only officials should be able to bring prosecutions for criminal breaches under the WHS Act and ES Act.

R.16 The Industrial Magistrates Court should continue to have first instance jurisdiction over prosecutions under the WHS Act and the ES Act.

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Recommendations being submitted for consideration as part of the national review

The following 7 recommendations will be submitted for consideration as part of the national review.

R.26 Statutory provision should be made for higher penalties where a duty holder is a previous offender.

R. 29 Considerations should be given to providing for civil remedies (fines, injunctions, other remedial orders) as well as for criminal penalties for less serious offences under the WHS Act and the ES Act, with the regulator having the option to bring proceedings of either type for a breach.

R.33 The limitation periods for bringing prosecutions under the WHS Act and the ES Act should, subject to wider criminal justice policy considerations, be increased to within 2 years after the act or omission alleged to constitute the offence or within 6 months of the offence of the offence coming to the knowledge of the complainant or the Chief Executive, whichever is the later.

R.36 A wider range of sentencing options should be expressly provided for under the WHS Act and the ES Act, namely:

R.37 There should be a sanction for non-compliance with a non-monetary order.

R.38 When considering what orders to make upon a conviction for an offence under the WHS Act or the ES Act, the Court should be required, upon application, to have regard to the potential effect of a fine on the capacity of the duty holder to carry on the business that was involved in the proceedings, including the effect on the employment or continuing engagement of other persons by the business.

R. 41 If it decided to provide for civil remedies as an enforcement option (R.29), consideration should, in the context of the overall enforcement regime, be given to who should be authorised to seek such remedies.

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