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1
Workplace Health and Safety and Another Act
Amendment Bill 2002
WORKPLACE HEALTH AND SAFETY
AND ANOTHER ACT AMENDMENT BILL
2002
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
The objective of this Bill is to amend the Workplace Health and Safety
Act 1995 (hereinafter referred to as "the Act") to ensure it continues to
provide for an effective modern regulatory regime that meets the needs
associated with the changing nature of the labour market and ensures
appropriate health and safety outcomes are achieved for all stakeholders.
The Bill also makes consequential amendments to the Electrical Safety Act
2002.
The Bill gives effect to the recommendations of an independent review
of the Act conducted in 2001-2002.
Reason for the Bill
In March 2001, the Minister for Industrial Relations commissioned an
independent review into the Division of Workplace Health and Safety of
the Department of Industrial Relations. The review was organised in
response to a number of issues and concerns that identified shortcomings in
the organisation and delivery of health and safety services in Queensland.
The recommendations of the review were considered and accepted by
the Government in September 2001, which further recommended a review
of the Workplace Health and Safety Act 1995 to ensure it reflects changes in
the labour market and meets contemporary regulatory needs, and to
consider the adequacy of current enforcement mechanisms and penalties.
The proposals to amend the Act have the following 3 aims:
1. To improve the balance of legal obligations at the workplace
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Workplace Health and Safety and Another Act
Amendment Bill 2002
2. To strengthen the consultative arrangements between employers
and employees
3. To provide greater consistency with other safety legislation and
to streamline reporting requirements for employers.
1. Improving the balance of legal obligations at the workplace
The aim of these provisions is to assign legal responsibility to those that
can best control the risk. This is especially important with new work
arrangements being introduced on a regular basis. The changes place
obligations on persons who conduct work undertakings, persons who
design buildings and persons in control of buildings used as workplaces. In
addition, the proposals will ensure designers, manufacturers and suppliers
of equipment have an obligation to provide safety information with the
equipment and to ensure it has been tested or checked. Similarly,
manufacturers and suppliers of substances will have an obligation to
provide safety information. Finally, the proposals will clarify the specific
obligations that employers have to meet to ensure health and safety.
2. Strengthening the consultative arrangements
The changes to the Act will also require workplace health and safety
officers to conduct an annual inspection at the workplace and will provide
for accredited training for workplace health and safety representatives. The
Queensland Industrial Relations Commission will be available to resolve
any disputes over issues related to the training of representatives.
3. Providing greater consistency with other safety legislation and
streamlining reporting requirements for employers
The changes will bring the Workplace Health and Safety Act 1995 in line
with the recent Electrical Safety Act 2002 with the introduction of
enforceable undertakings as an alternative to prosecution and will align
penalties with that Act and the Dangerous Goods Safety Management Act
2000. In addition, investigation powers are being clarified.
The proposed amendments also seek to align reporting requirements
with WorkCover Queensland provisions so that employers will not have to
report the same accident twice. For the building and construction industry,
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Workplace Health and Safety and Another Act
Amendment Bill 2002
reporting and fee provisions are being aligned with the Building and
Construction Industry (Portable Long Service Leave) Act 1991.
Administrative costs and savings to Government
There are no additional costs incurred by government.
Consistency with fundamental legislative principles
Section 24(1) of the Workplace Health and Safety Act 1995 provides that
a person on whom a workplace health and safety obligation is imposed
must discharge the obligation and provides for a series of penalties for
breaches of this provision. The Bill adds to these obligations and proposes
to substitute the existing penalties with a series of higher penalties that are
generally consistent with other obligation-based legislation, in particular,
the Dangerous Goods Safety Management Act 2001 and the Electrical
Safety Act 2002.
It is considered that the new obligations fill identified gaps in the
obligation chain and apportion more fairly the responsibility for controlling
and managing exposure to risk to those person who create the risk and are
best able to control and manage it.
The increased penalties more properly reflect the government's response
to the seriousness of these offences.
Consultation
An Issues Paper was released for public consultation in December 2001.
The Issues Paper canvassed a range of matters and raised a number of
potentially contentious issues that generated a great deal of discussion and
disagreement. A total of 66 written submissions were received from a range
of stakeholders.
The Workplace Health and Safety Board appointed a reference group
consisting of two employer representatives and two employee
representatives as well as an independent academic advisor (Professor
Richard Johnstone) to assist the legislative review team. The primary
function of this reference group was to provide guidance and feedback on
the critical issues and views of the representative parties.
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Workplace Health and Safety and Another Act
Amendment Bill 2002
An internal reference group consisting of staff from the Department was
also established to provide input into the review process.
Policy position papers were subsequently developed and considered by
the Workplace Health and Safety Board in April and June 2002.
Further consultation with the major industry bodies, unions and those
persons who had expressed an interest by making a submission to the
Issues Paper occurred in October 2002. Further discussions were held with
key stakeholders on the proposed amendments to the Act in November
2002.
The Department of the Premier and Cabinet, Queensland Treasury and
the Department of Justice and the Attorney-General were consulted on
several occasions since the beginning of 2002. Consultation was also
undertaken with the Department of Public Works, Queensland Health,
Queensland Education and Disability Services Queensland during October
2002 in the development of the proposals.
The Department of the Premier and Cabinet, Queensland Treasury, the
Department of Justice and the Attorney-General, the Department of
Employment and Training, the Office of Rural Communities, the Business
Regulatory Review Unit, Education Queensland, the Department of
Emergency Services, the Building Services Authority and the Department
of Public Works were consulted in November 2002 regarding the draft
Workplace Health and Safety and Another Act Amendment Bill 2002.
NOTES ON CLAUSES
PART 1--PRELIMINARY
Short title
Clause 1 provides the short title of the Bill.
Commencement
Clause 2 provides for the commencement of the Bill on a date to be fixed
by proclamation.
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Workplace Health and Safety and Another Act
Amendment Bill 2002
PART 2--AMENDMENT OF THE WORKPLACE
HEALTH AND SAFETY ACT 1995
Act amended in pt 2
Clause 3 states the provisions of this Bill amend the Workplace Health
and Safety Act 1995.
Amendment of s 10 (Who is an "employer"?)
Clause 4 replaces subsection (1) in section 10 to align the definition of
an "employer" with the definition appearing in the Electrical Safety Act
2002. The amendment clarifies the definition of an employer and does not
change the intent of section 10. The clause also amends the wording of
subsection (2) to make the intent of the clause clearer.
Amendment of s 11 (Who is a "worker" and who is not?)
Clause 5 corrects the incorrect citation of the expression "contract for
services" and omits subsection (3) of section 11. Subsection (3) states that
"a person is not a "worker" merely because the person does work for an
organisation of which the person is a member." Subsection (3) may be
misleading and confusing to users of the legislation in the context of
establishing if a person is a "worker" for the purposes of the Act. The
omission of subsection (3) does not change the intent of section 11.
Replacement of s 12 (Who is a "self-employed person")
Clause 6 replaces the existing section 12 to align the definition of a
"self-employed person" with the definition appearing in the Electrical
Safety Act 2002. The amendment clarifies the definition of self-employed
person and does not change the intent of section 12.
Insertion of new s 13A
Clause 7 inserts a definition of "construction work" as a result of
changes to the definitions of "building work" and "civil construction work"
in Schedule 3 of the Act.
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Amendment Bill 2002
Amendment of s 14 (What is a "construction workplace"?)
Clause 8 amends the definition of "construction workplace" in order to
align it with the amendments made by clause 7.
Insertion of new pt 1, div 4, sdiv 3
Clause 9 inserts a definition for a "relevant workplace area" (s.15A) and
definitions for "person in control" of a building or other structure (s.15B)
and "person in control" of fixtures, fittings or plant (s.15C) to support
provisions introducing new obligations in clause 14.
The clause defines a "relevant workplace area" as any building or
structure, or part of a building or structure, used as a workplace and any
associated adjacent area.
The clause defines "person in control" of a "relevant workplace area" as
the person who is the owner of the building or other structure or part.
However, the clause also specifies that if there is in place a lease, contract
or other arrangement that provides, or has the effect of providing, for
another person to have effective and sustained control of the area, then the
other person, and not the owner, is the "person in control" of the area.
The clause defines "person in control" of fixtures, fittings or plant
included in a `relevant workplace area" as the person who is the owner of
the building or other structure or part. However, the clause specifies that if
there is a lease, contract or other arrangement that provides, or has the
effect of providing, for another person to have effective and sustained
control of the fixtures, fittings or plant, the other person, and not the owner
of the building or other structure or part, is the "person in control" of the
fixtures, fittings or plant.
Amendment of s 23 (Obligations for workplace health and safety)
Clause 10 amends the list of obligation holders to incorporate new
obligation holders. This includes persons who conduct a business or
undertaking, whether or not as an employer or self-employed person;
designers of buildings or other structures to be used as workplaces; persons
in control of relevant workplace areas and persons in control of fixtures,
fittings or plant included in relevant workplace areas. At the same time, it
deletes references to "importers" of plant and substances in accordance
with amendments made by sections 32, 32A, 32B, 34 and 34A.
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Amendment of s 24 (Discharge of obligations)
Clause 11 amends the maximum penalties allowed under the Act to align
them with other Queensland workplace safety legislation. The Queensland
Government recently considered the appropriate level of fines for breaches
of the Electrical Safety Act 2002. The size and scope of the penalties
adopted are consistent with the Dangerous Goods Safety Management Act
2001. It is important for penalties under the Workplace Health and Safety
Act 1995 to mirror other regulators that are also involved in ensuring health
and safety where possible.
The amendment increases the penalty for a breach by a corporation
resulting in death from $300,000 to $375,000, and similar increases for
lesser offences resulting in bodily harm or exposure to substances that may
result in death or bodily harm. These changes are consistent with the
penalty provisions for similar offences in both the Electrical Safety Act
2002 and the Dangerous Goods and Safety Management Act 2001.
In addition, the amendment introduces a penalty for multiple deaths up
to a maximum of $750,000 for a corporation consistent with the Dangerous
Goods and Safety Management Act 2001. The Bill also makes a
consequential amendment to the Electrical Safety Act 2002 to introduce the
same penalty for multiple deaths.
It should be noted that the maximum fine imposed for an offence that
resulted in a death under the Act is $70,000 and for a multiple death,
$125,000. The change is considered important in that it will signal to the
community and courts the seriousness of the offences under the Act and the
consistency of penalties for offences under general workplace health and
safety legislation.
Amendment of s 24A (Charges for offences against s24)
Clause 12 amends section 24A as a consequence of the amendments
made to sections 28 and 29 and the inclusion of section 29A (Clause 13).
Replacement of ss 28 - 29
Clause 13 replaces section 28, which outlines the obligations of
employers under the Act. This amendment rewords the provision in order
to clarify the obligations and in particular that the employer must prevent
the exposure of others to risk of work related injury or illness. This
amendment does not change the intent of section 28.
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Amendment Bill 2002
The clause also replaces the existing section 29, which outlines the
obligations of self-employed persons under the Act. This amendment
rewords the provision in order to clarify the obligations and in particular
that the employer must prevent the exposure of others to risk of work
related injury or illness. This amendment does not change the intent of
section 28.
The clause also inserts a new section 29A, which outlines the obligations
of persons conducting a business or undertaking. The traditional focus on
the employer as the primary obligation holder has become increasingly
problematic due to a range of new labour market and contracting
arrangements. The growth in outsourcing and the use of contractors and
labour hire workers has created uncertainty in the allocation of health and
safety responsibilities.
While the general "duty of care" is a non-delegable duty, the current
provisions rely heavily upon the traditional employer/employee
relationship and do not adequately reflect changes to work arrangements in
the modern labour market. This provision has been designed to shift the
emphasis away from the traditional employment status and to focus instead
on the originator of the risk and the party best able to manage and control
the risks associated with any business or undertaking.
The traditional concept of a "workplace" with an employer who directly
employs employees for wages is being increasingly replaced by new and
contingent work arrangements. Growth in the not-for-profit sector and the
greater involvement by persons in unpaid work-type activities (eg:
volunteers) has also contributed to the pressure of remaining with the
existing provisions. The purpose of the amendment is to clarify that
persons who conduct a business or undertaking have an obligation to
ensure the workplace health and safety of each person who performs a
work activity for the purposes of the business or undertaking. In this way,
the host employer of a labour hire worker, for example, has the same
obligation to that worker as to the employer's own workers if he or she
were to have any.
The allocation of responsibility to the party that generates the risk
associated with a business or undertaking contributes significantly to
removing a large part of the ambiguity and overlap existing under current
provisions.
The clause also inserts a new section 29B, which specifies the key
elements to meeting the obligation outlined in sections 28-29A.
Specification of the key elements of the obligation within the Act is
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Amendment Bill 2002
considered an appropriate and effective means of increasing employers'
understanding of their obligation to workers. The amendment includes the
provision of a safe and healthy work environment, safe systems of work,
plant that is safe and the provision of information, instruction, training and
supervision.
The amendment does not alter current legal obligations, but clarifies how
these obligations can be met.
Replacement of s 32 (Obligations of designers, manufacturers,
importers and suppliers of plant)
Clause 14 replaces the existing section 32, which outlined the
obligations of designers, manufacturers, importers and suppliers of plant,
with new sections 32, 32A and 32B. The clause inserts separate provisions
for each obligation holder in order to be more specific about the obligations
held by each obligation holder.
The clause imposes an obligation on suppliers to supply plant that will
not pose a risk to workplace health and safety. Such an amendment will
eliminate the possibility of unsafe plant being legally supplied to
Queensland workplaces, especially from outside the country.
The clause introduces a new requirement on each obligation holder to
provide information about the safe use of the particular item of plant when
that plant is supplied to another person. The current provisions for ensuring
that appropriate information about the safe use of the plant is available are
inadequate. There are no requirements for suppliers, designers or
manufacturers to actually provide relevant health and safety information to
the person who receives the plant; all they need do is indicate that it is
available. The amendment is designed to ensure that the end user is
provided with information about the safe use of plant.
The new provisions provide that an importer is a supplier.
Amendment of s 33 (Obligations of erectors and installers of plant or
specified high risk plant)
Clause 15 omits the words `or specified high risk plant'. The reference
to plant preceding these words already includes specified high risk plant.
The amendment merely corrects the use of language in this provision.
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Workplace Health and Safety and Another Act
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Replacement of s 34 (Obligations of manufacturers, importers and
suppliers of substances for use at workplaces)
Clause 16 replaces the existing section 34, which outlined the
obligations of manufacturers, importers and suppliers of plant, with new
sections 34 and 34A. The clause inserts separate provisions for each
obligation holder in order to be more specific about the obligations held by
each obligation holder.
The clause introduces a new requirement on each obligation holder to
provide information about the safe use of substances when that substance is
supplied to another person. The current provisions for ensuring that
appropriate information about the safe use of the substances is available are
inadequate. There are no requirements for suppliers or manufacturers to
actually provide relevant health and safety information to the person who
receives the substance; all they need do is indicate that it is available. The
information about safe use of hazardous substances is readily available
through a national material safety data sheet (MSDS) scheme. The
amendment is designed to ensure that the end user is provided with
information about the safe use of substances.
The new provisions provide that an importer is a supplier.
The clause also inserts a new section 34B, which introduces a new
obligation on designers of buildings or other structures used as workplaces.
The Building and Construction (WHS) Taskforce (2000) recommended
that an obligation be placed on designers, engineers and architects to
ensure that the design of a building or structure does not pose a risk to the
health and safety of those involved in the use, repair and maintenance of
the building or structure. A quality safety management approach
acknowledges the need to identify and design out foreseeable hazards as
early as possible, particularly at the design phase.
The amendment imposes an obligation on designers to ensure that
buildings may be used, repaired and maintained in a safe manner.
Transitional provisions are provided to ensure that this legal obligation will
not apply to those buildings for which designs have been commenced
under an existing contract. The amendment also restricts the potential
exposure of designers to standards existing at the time of the design and to
the extent that the content of the design falls under the control of the
designer. The provision excludes domestic premises.
The clause also inserts a new section 34C, which introduces a new
obligation on persons in control of a "relevant workplace area." Definitions
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Workplace Health and Safety and Another Act
Amendment Bill 2002
for these are included at clause 9 (ss.15A, 15B and 15C). Risk associated
with the structural integrity, condition or reasonable use of a building is not
explicitly covered by the Act even though the building itself may be a
workplace as defined by the Act. The lack of an obligation creates a gap in
the obligation chain under the Act, which results in unrealistic obligations
being imposed on employers.
The clause also inserts a new and complementary section 34D, which
introduces an obligation on persons in control of fixtures, fittings or plant
included in a "relevant workplace area".
The imposition of an obligation on persons in control of buildings and
persons in control of fixtures and fittings will serve to fill an identified gap
in the obligation chain to allow a more equitable distribution of
responsibility for health and safety based upon the creation and control of
risks.
The provisions exclude residential premises.
These provisions have been included to assist in the allocation of
responsibility for health and safety to those parties most appropriate to
manage and control exposure to the risk of injury and illness. Tenants and
employers who lease premises will now be in as position to determine the
appropriate party who can best manage the health and safety obligation.
Responsibility for issues such as carpark maintenance, safety switches on
switchboards and general maintenance will be clarified under these new
provisions.
Insertion of new pt 5
Clause 17 inserts a new part 5, which provides for enforceable
undertakings under the Act. Enforceable undertakings are an alternative to
prosecution and are legally binding commitments made by obligation
holders subsequent to an alleged contravention of the legislation to, for
example:
· to cease certain behaviour
· to take specific action to redress parties adversely affected by a
contravention of the legislation
· to implement specified actions or programs to prevent future
breaches
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· to implement other publicity or educative programs to help deter
other obligation holders from infringing similar breaches.
The clause explains the meaning of a workplace health and safety
undertaking. A workplace health and safety undertaking is a written
undertaking made by an identified person. It is entered into as an
alternative to prosecution for an alleged contravention of the obligation
offence provision or executive officer provision. The clause sets out what
is required for a workplace health and safety undertaking.
The clause provides the mechanism for the chief executive to accept an
identified person's undertaking. It also allows the chief executive to
publish the details of the undertaking. This requirement is aimed at
improving compliance with the Workplace Health and Safety Act 1995 as
well as providing an alternative, and possibly more beneficial, sanction for
non-compliance.
The clause provides that the chief executive must apply to the
Magistrate's Court to discontinue the proceeding for the alleged offence
before the enforceable undertaking begins. Where a proceeding for the
alleged contravention has not been started, a proceeding for the alleged
contravention must not be started.
The clause provides the offence for contravening the workplace health
and safety undertaking. The maximum penalty for a breach of this clause is
1000 penalty units.
The clause describes the mechanism for varying or withdrawing an
undertaking.
The clause provides that the chief executive can apply to the Industrial
Court for certain orders where the chief executive considers a person has
contravened the undertaking. When considering an application, the
Industrial Court may make an order directing the identified person to
comply or another order that it considers appropriate. A prosecution for
contravening the undertaking does not prevent a court from making this
order.
An order of the court under this clause does not, unless the order
otherwise provides, prevent a prosecution for the contravention of the
undertaking.
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Workplace Health and Safety and Another Act
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Amendment of s 70 (Negotiation between workers and employer about
workplace health and safety representatives)
Clause 18 inserts new subsections in section 70 to provide for the
Queensland Industrial Relations Commission to hear and decide, as an
industrial matter, an application by a person aggrieved by the failure of a
negotiation relating to workplace health and safety representative
entitlements as outlined under section 70(1). The new subsection, 70(4),
must be read in conjunction with the Industrial Relations Act 1999.
Amendment of s 78 (Employer to tell workplace health and safety
representative about certain things)
Clause 19 replaces the words "work injury, work caused illness and
dangerous event" with the expression "workplace incident" as the result of
the amendment in clause 36.
Amendment of s 81 (Entitlements of workplace health and safety
representatives)
Clause 20 replaces the words "work injury, work caused illness and
dangerous event" with the expression "workplace incident" and inserts a
new subsection in section 81 to require an employer to allow a workplace
health and safety representative to attend a prescribed training course,
including a refresher course, and to have all reasonable costs of the
representative's attendance at the course, including course fees and the
representative's usual remuneration, met by the employer. This is one of
the matters that can be dealt with by the Queensland Industrial Relations
Commission under amendments proposed by clause 18.
The current absence of any entitlement to training restricts workplace
health and safety representatives' ability to perform their role effectively.
Amendment of s 90 (Functions of workplace health and safety
committees)
Clause 21 replaces the words "work injury, work caused illness and
dangerous event" with the expression `workplace incident" in section
90(3)(d).
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Workplace Health and Safety and Another Act
Amendment Bill 2002
Amendment of s 96 (Functions of workplace health and safety officers)
Clause 22 replaces the words "work injury, work caused illness and
dangerous event" with the expression `workplace incident" in section 96(e)
and section 96(g).
Insertion of new s 96A
Clause 23 inserts a new section 96A, which introduces a requirement for
workplace health and safety officers to conduct an annual assessment of the
workplace using criteria developed by either the Division of Workplace
Health and Safety or agreed to by the workplace health and safety
committee at the workplace. Under this amendment, the Workplace Health
and Safety Officer is required to record the results of the inspection and
submit them to the employer along with any recommendations to rectify
any identified unsafe workplace health and safety conditions and practices.
Amendment of s 97 (Employer and principal contractor to help
workplace health and safety officer etc.)
Clause 24 is a consequential amendment resulting from clause 23. The
clause places a requirement on employers and principal contractors to
allow workplace health and safety officers to conduct workplace
inspections and assessments during normal working hours, to provide
resources to allow the workplace health and safety officer to properly
exercise the officer's functions under the Act, to take appropriate action to
rectify any identified unsafe workplace health and safety conditions and
practices and to take all reasonable steps to ensure the workplace health
and safety officer complies with section 96A.
Amendment of s 104 (Entry to places)
Clause 25 amends section 104 to allow a workplace health and safety
inspector to enter a place the inspector reasonably suspects is a workplace
and a place where specified high risk plant is situated.
The changing nature of the labour market not only reflects the
contractual basis upon which labour services are provided but also reflects
changing workplace arrangements. Inspectors need to have appropriate
levels of access to places where they reasonably suspect work is being
performed.
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Under current provisions, an inspector only has authorised entry to
places and land around places that are known to be workplaces. An
inspector who enters a place (without the occupier's consent) under the
belief that it is a workplace (or to determine its status) and subsequently
determines that it is not a workplace is outside the scope of his or her
powers.
Entry to domestic premises that are not used as workplaces is not
currently permitted without consent and this restriction will not be
modified in any way under the proposed amendment.
A second deficiency of the current section 104, is the failure to provide
inspectors with authorised access to places where specified high risk plant
is situated. Such plant (e.g. a lift or air conditioning unit in a residential
building) is covered by the Act but may not necessarily be situated in a
workplace and therefore cannot currently be accessed by an inspector. The
amendment provides for an inspector to enter any place that the inspector
has reason to suspect is a workplace or where specified high risk plant is
situated.
Amendment of s 108 (General powers after entering places)
Clause 26 inserts a new subsection (1A) in section 108 as a consequence
of the amendment in clause 25. Section 108(1A) excludes an inspector
from exercising powers in a place that was entered because it was
suspected of being a workplace but upon entering was found not to be.
Insertion of new s 121
Clause 27 inserts a new section 121, which provides for an inspector to
require a person who has knowledge, or whom the inspector reasonably
suspects to have knowledge, of the circumstances of a workplace incident
to give the inspector reasonable help, as stated in the requirement.
The requirement may be given orally or in written form.
A person must comply with a requirement unless the person has a
reasonable excuse for not complying. It is a reasonable excuse for a person
not to comply with a requirement if complying with the requirement might
tend to incriminate the person.
The maximum penalty for a breach of this provision is ten penalty units.
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Insertion of new pt 11, div 1A
Clause 28 amends the definition of a "decision" to exclude any decision
taken by the chief executive under part 5 (enforceable undertakings) in
relation to review or appeal. This provision is consistent with the Electrical
Safety Act 2002.
Amendment of s 148 (Application for review)
Clause 29 is a consequential amendment from clause 28.
Amendment of pt 13 (Offences)
Clause 30 omits several division headings that are no longer required.
Insertion of new s 174
Clause 31 inserts a new section 174 for the purposes of providing for
anti-victimisation provisions under the Act. The provision provides that an
employer must not dismiss a worker, or otherwise act to the detriment of a
worker in the worker's employment, for the dominant or substantial reason
that the worker is, or has performed a function as, a workplace health and
safety representative, a workplace health and safety officer, or a member of
a workplace health and safety committee or has raised a complaint about an
issue, or in any other way has raised an issue, concerning workers'
exposure to the risk of illness or injury or has contacted or given help to an
inspector.
The maximum penalty for a breach of this provision is 40 penalty units.
This clause provides that if an employer contravenes section 174(1) by
dismissing a worker, the worker is taken to have been unfairly dismissed
under the Industrial Relations Act 1999, chapter 3, part 2, and subject to
that part, has the remedies under that part.
Insertion of new s 184A
Clause 32 inserts a provision for the appointment of a principal
contractor for a construction workplace. The appointment must be done
using an approved form and notifying the appointment to the chief
executive. The clause also provides that more than one principal contractor
can be appointed to the same construction workplace only with the
approval of the chief executive.
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Amendment of s 185 (Powers of chief executive)
Clause 33 omits the words "or specified high risk plant" and "importer".
The reference to plant preceding these words already includes specified
high risk plant. Importers are now included in the definition of "suppliers"
of plant and substances. The amendment merely corrects the use of
language in this provision.
Amendment of pt 17 (Transitional provisions)
Clause 34 inserts a new division 3 in part 17 and a new section 191. The
clause provides that the new obligations imposed on designers of buildings
used as workplaces do not take effect until six months after the
commencement of this section. This is to allow a transition period to
ensure that this legal obligation will not apply to existing buildings or to
those where designs have been commenced under an existing contract.
Omission of sch 1 (List of offences and penalties)
Clause 35 omits schedule 1, which sets out a list of the offences under
the Act and their respective penalties.
Amendment of sch 3 (Dictionary)
Clause 36 updates the dictionary to the Act in accordance with the
amended provisions. In addition, the clause provides new definitions for
"serious bodily injury", "work caused illness" and "dangerous event".
The existing definition of serious bodily injury does not take into
account modern treatment methods, especially as there is a movement
away from hospital admissions to day surgery and community-based care.
Many serious injuries occur that do not require subsequent admission to
hospital as an inpatient. In addition, there are currently separate notification
requirements for workers' compensation and workplace health and safety
legislation. The Division of Workplace Health and Safety would receive
far greater number of notifications if it aligned its notification requirements
with that of injuries reported to WorkCover.
Work caused illnesses are reportable if they are contracted by a worker
in the course of doing work and to which the work was a contributing
factor. As the general legal obligation under the Act extends to others that
may be affected by the employer's undertaking, it would be appropriate for
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the notification of illnesses to be likewise extended to others affected by the
undertaking who contract an illness related to the work process where the
work is a significant contributing factor.
To promote clarity and simplicity, the new definition of dangerous event
specifies the events to be notified to the Division of Workplace Health and
Safety. In general, these events are those that are likely to cause serious
bodily injury or death if a person were in proximity to the work area when
the event occurred.
PART 3--AMENDMENT OF THE ELECTRICAL
SAFETY ACT 2002
Act amended in schedule
Clause 37 provides for the consequential amendment of the Electrical
Safety Act 2002. The schedule sets out those sections of the Electrical
Safety Act 2002 that will be amended as a consequence of the amendments
to the Workplace Health and Safety Act 1995 as well as to rectify minor
drafting anomalies.
© State of Queensland 2002