Amendments to Queensland’s WHS Act: What you Need to Know

In Queensland, the Work Health and Safety Amendment Bill 2023 (Bill) passed Parliament on 21 March 2024 and these changes will have implications for all employers based in Queensland.

In order to help you understand these changes, Akyra sought information from our Workplace Health & Safety Consultant (Michelle Bates from Virtual Safety Manager), who has provided a helpful summary of these amendments and their potential implications for employers.

Queensland Workplace Health & Safety Act Amendments

1. Insurance for WHS fines and penalties will be banned. Companies and individuals can no longer insure themselves for any WHS fines and penalties. All fines and penalties are to be paid directly by the company or the individual.

2. Category 1 offence to include non-worker individuals. Currently, the Category 1 offences (recklessly endangers a person to risk of death or serious injury) mainly covers exposure to workers. This will be expressly expanded to include visitors and members of the public that could be affected by a company’s business operations. The change will include the option to prosecute a business for a Category 1 or 2 offence if the elements of industrial manslaughter cannot be proven beyond reasonable doubt.

In short, if negligence causes the death of a worker, that can be industrial manslaughter ($10 million for a body corporate and 20 years imprisonment for an individual).  If a breach of the WHS Law exposes someone to a risk of death or serious injury, and involves negligence, that can be a Category One offence ($3 million for a body corporate; $600,000 and/or 5 years imprisonment for an officer; or $300,000 and/or 5 years imprisonment for a worker).

3. Where Health and Safety Representatives (HRS) have been requested by a worker, the business will be required to extend an invitation to elect a Health and Safety Representative (HSR) annually. Currently, a business is required to hold elections for health and safety representatives on request by a worker. This change will require a company to extend an annual invitation to its workers to elect a HSR and advise them of the process. The business will be required to confirm who can represent workers in a negotiation (e.g. a union).

4. Cease work directions. This change involves a HSR issuing a cease work direction to the business if they have a reasonable concern that the hazards associated with work would expose workers to a serious risk to their health and safety. The business must cease work for unsafe conditions. The cease work direction will only be removed if one of the following is achieved:

• The HSR withdraws the cease work direction.
• The situation is resolved with assistance by a WHSQ Inspector.
• Inspector issues a prohibition notice.
• The QIRC deals with the dispute.

Note that the last 3 points involve an external agency which may significantly increase the time that the cease work direction is in force. This could have implications to the business financially, reputationally and operationally.

It is very important that any unsafe conditions brought to your attention are taken seriously and mitigation actions are implemented in consultation with your HSR / workers.

5. Larger union presence and decision-making power. Unions will be able to directly participate with a worker. The worker will no longer have to identify themselves as a member of a union before that union participates as a representative of that worker. The business will be required to hold consultation activities only at a time and place that is suitable for all parties. Unions will be allowed to seek orders from the QIRC in relation to a civil penalty contravention.

6. There will also be a change of jurisdiction for WHS civil penalty matters from the Magistrates Court to the QIRC (Qld Industrial Relations Commission). The QIRC mainly deals with work and employment-based matters as opposed to the Magistrates Court.

What are the implications for employers?

These changes highlight the absolute need for businesses to have robust safety management systems in place, which include good hazard and risk management, consultation avenues for your workers and strong leadership and accountability.

It will also be critical to ensure that systems are updated to accommodate the new obligations and powers regarding Health and Safety Representatives and the prohibition on insurance for fines.

Finally, it should be noted that any changes to these offences will not alter the scope of duties or compliance obligations under the WHS Act. However, if further amendments are made to the offence of industrial manslaughter and the Category 1 offence, this will likely increase exposure to penalties where charges are laid. Accordingly, such changes would reinforce the need for WHS Act compliance.

Key Takeaways