This material specifically applies to the law in the state of Queensland. The principles are of general application in other states but the detail of the law varies from state to state.

A. GENERAL DUTIES

The starting point is that all employers have a general duty at common law to implement and maintain a safe system of work for both their employees and others. This is often expressed as a duty to take reasonable care to avoid exposing employees to reasonably foreseeable risks of injury. In assessing whether or not an employer has breached its duty of care to an employee, a court will generally consider several factors including:

The question of what is reasonable is ultimately determined by reference to community standards and expectations and given the demanding statutory workplace health and safety obligations, the standard is a high one. Where an employer breaches its common law duty of care, the employee can claim benefits under the statutory system of workers compensation and/or sue for monetary damages in the common law courts. Your work cover insurance will cover you for any statutory or common law claim in this regard.

However, your common law duties are only a starting point. In Queensland, legislation imposes onerous, indeed strict, obligations on employers and persons conducting a business or enterprise to ensure the workplace health and safety of persons coming into their workplace. In order to understand the requirements and your obligations for workplace health and safety you must consider and understand relevant legislation and codes of practice.

B. OBLIGATIONS UNDER THE WORKPLACE HEALTH AND SAFETY ACT 1995 (QLD)

1. Introduction

The Act establishes a framework for preventing or minimising exposure to risk by:

• imposing workplace health and safety obligations on people who may affect the health and safety of others by what they do, or fail to do;
• establishing benchmarks for industry through the making of regulations and codes of practice
• establishing a workplace health and safety board that encourages industry participation and cooperation;
• appointing workplace health and safety officers to help employers and principal contractors manage workplace health and safety;
• encouraging workplaces to have workplace health and safety committees involving workers and management;
• supporting worker involvement through the establishment of workplace health and safety representatives in the workplace;
• appointing accredited providers to assist industry in managing particular risks; and
• appointing inspectors to monitor and enforce compliance with the Act.

To understand your obligations and safety requirements you must be familiar with the:

• Workplace Health and Safety Act 1995 (Qld) which imposes obligations on people at workplaces to ensure workplace health and safety;
• Workplace Health and Safety Regulation 1997 which describes what must be done to prevent or control certain hazards which cause injury, illness or death; and
• codes of practice (or prior to 18 November 2004, advisory standards) which are designed to give practical advice about ways to manage exposure to risks common to industry.

Under the Workplace Health and Safety Act 1991 (Qld) an employer has a general obligation to ensure the workplace health and safety of each of its workers in the conduct of the employer’s business or undertaking. These obligations include an obligation to:

• Provide or maintain plant, equipment, substances or systems of work which are safe and with out risk to health;
• Provide a system of work for the safe handling, use, storage and transport of plant, equipment and substances;
• Provide all information, instruction, training and supervision necessary to ensure health and safety;
• Provide and maintain a means of entry and exit from the workplace that is safe without any risks to health or safety;
• Provide adequate facilities to ensure health, safety and welfare;
• Provide for adequate monitoring of health and safety in the workplace to the extent that monitoring is relevant to the prevention of work related injuries (eg quality and temperature);
• To keep adequate information and records relating to work related injuries.

It is important to note that in addition to the traditional obligations on employers, the legislation also imposes obligations on self employed persons, persons conducting a business or undertaking, persons in control of workplaces or relevant workplace areas, principal contractors, persons involved in the design, manufacture, supply, erection and installation of plant and substances, persons in control of fixtures, fittings or plant as well as workers and anyone else at the workplace. An employee is under an obligation to ensure their own health and safety at work generally and specifically;

• To use protective equipment provided by the employer in accordance with the employers instruction; and
• Not to wilfully or recklessly interfere or misuse anything provided for workplace health and safety.

2.What a person with an obligation must do

• If the Workplace Health and Safety Regulation 1997 describes how to prevent or minimise a risk at your workplace you must do what the regulation says.
• If there is a code of practice (or prior to 18 November 2004, an advisory standard ) that describes how to prevent or minimise a risk at your workplace you must do what the code says or adopt and follow another way that gives the same level of protection against the risk.
• If there is no regulation or code of practice about a risk at your workplace you must choose an appropriate way to manage exposure to the risk. People must, where there is no regulation or code of practice about a risk, take reasonable precautions and exercise proper diligence against the risk.

3. Who has obligations?

Everyone has a part to play in ensuring their workplace health and safety and the workplace health and safety of others in Queensland. The Workplace Health and Safety Act 1995 (Qld) specifies workplace health and safety obligations for individuals in their various roles. This means that a person may have multiple obligations. For example, a person may be an employer, principal contractor and supplier of plant at the same time. In this case, the person has obligations in each of these capacities. The Workplace Health and Safety Act 1995 specifies the obligations for:

• People who conduct a business or undertaking primarily employers and self-employed people;
• People in control of a workplace, including owners and particular areas in the workplace;
• Principal contractors;
• People in control of fixtures, fittings or plant included in workplace areas, including owners;
• Designers of plant;
• Manufacturers of plant and substances used in the workplace;
• Hirers, importers and suppliers of plant and substances;
• Owners of plant;
• Erectors and installers of plant;
• Designers of structures, including building designers;
• Workers ;
• Workplace visitors;
• Volunteers.

4. How to meet WHS obligations

A person can meet their workplace health and safety obligations by following the law. You must:

• Comply with a regulation or ministerial notice stating how to prevent or minimise exposure to a risk, or prohibiting exposure to the risk;
• Adopt and follow the approach provided in a code of practice stating a way of managing exposure to a risk, or one that gives at least the same level of protection against the risk;
• Take reasonable precautions and exercise due care in work activities if there is no regulation, ministerial notice or code of practice to guide you in managing a particular risk or preventing exposure to it. It is important to note that you still have a workplace health and safety obligation.

C. THE WORKPLACE HEALTH AND SAFETY REGULATION

The regulation sets out the legal requirements to prevent or control certain hazards which might cause injury or death in the workplace. It prohibits exposure to a risk and prescribes ways of preventing or minimising exposure to a risk. If a regulation exists for specific risks at your workplace in order to meet your obligations under the Act you must do what the regulation says to prevent or minimise the impact of the risk. Things covered by the regulation include:

• how to apply for:
  • a certificate of registration of registrable plant;
  • a certificate of registration of registrable plant design;
  • a certificate to work in a prescribed occupation;
  • a certificate of authority to appoint a workplace health and safety officer;
  • a certificate of appointment as an accredited provider;
  • a certificate to perform a prescribed activity;
• what to do if a certificate is denied, cancelled or suspended;
• how to renew certificates;
• restrictions for working in ‘prescribed occupations’ such as crane driving;
• restrictions for ‘prescribed activities’ such as demolition work or asbestos removal;
• training requirements for people working in prescribed occupations or doing prescribed activities;
• training requirements for workplace health and safety officers;
• when notification needs to be given for building and construction work;
• what to do if there is a workplace health and safety incident;
• what is required of construction workplace plans and work method statements in high risk construction and demolition activities;
• safe housekeeping practices for construction work including specific requirements for principal contractors;
• safe work practices around excavations and underground services;
• ways to prevent falls from heights;
• ways to prevent things falling on people;
• prohibited substances;
• how to safely manage:
  • hazardous substances;
  • excessive noise;
  • asbestos materials and asbestos removal;
  • lead materials;
• requirements for underwater diving work and ways to make recreational snorkelling safer;
• designing, manufacturing, modifying, supplying and working in confined spaces;
• the use of roll-over protective structures on tractors;
• availability and maintenance of amenities such as toilets, dining facilities and drinking water;
• building requirements including ventilation, floor space and lighting;
• first aid requirements;
• limits on atmospheric contaminants.

D. CODES OF PRACTICE

Codes of practice exist for the following;

• Abrasive blasting
• Asbestos;
• Cash in transit;
• Concrete pumping
• Construction industry;
• Compressed air recreational diving and recreational snorkelling
• First aid
• Forest harvesting
• Formwork
• Foundry
• Hazardous substances
• Horse riding schools, trail riding establishment and horse hiring establishments
• Manual tasks
• Manual tasks involving the handling of people
• Noise
• Occupational diving work
• Prevention of workplace harassment
• Recreational technical diving
• Risk management

This advisory standard is a generic risk management document. It describes a five-step process (known as the risk management process) for managing exposure to health and safety risks that can arise from workplace hazards.

• Rural chemicals
• Rural plant
• Safe design and operation of tractors
• Sugar industry

E. REPORTING AN INCIDENT

Part 7 of the Workplace Health and Safety Regulation 1997 requires certain people to notify Workplace Health and Safety Queensland of a:

• serious bodily injury;
• work caused illness;
• dangerous event.

Written notification is required within 24 hours of an incident in the event of any of the above occurring. If the incident involves a death, immediate notification is required on 1300 369 915. A Workplace Health and Safety Queensland Inspector is on call 24 hours. You can either print the approved form and fax it to the department or fill in the form online. You must also keep a copy of the form for your records for 1 year after the event.

Employers, self employed persons and principal contractors (at a construction workplace) have a legal obligation to report particular workplace incidents not causing death. If the workplace incident occurs at a construction workplace, the employer or self-employed person must:

• immediately notify the principal contractor for the workplace that the workplace incident has happened; and
• give the principal contractor any help the principal contractor may reasonably require to complete an approved form.

In the event of a death occurring, the following persons must report the incident:

• if the death is the employer - the person next in charge;
• if the death is anyone other than the employer - the employer or self-employed person;
• if the death occurred at a construction workplace - the principal contractor.

There could be some instances when more than one person needs to report the incident. The maximum penalty for failing to notify Workplace Health and Safety Queensland is 2 penalty units or $150 for an individual, and 4 penalty units or $300 for a corporation/ company. Failing to make a record of an incident incurs the same penalties.

Employers, self-employed people and principal contractors who fail to notify Workplace Health and Safety Queensland or make a record of a particular incident at the workplace will not commit an offence if they:

• did not know about the incident
• were incapacitated by the work caused illness or work injury; and
• notify WHSQ or make a record as soon as possible after recovery.

A non-notifiable incident is one that does not result in a person suffering from a serious bodily injury or death and is not a dangerous event. While you do not have to notifyWorkplace Health and Safety Queensland about non-notifiable incidents, including "near misses" so action can be taken to prevent similar incidents occurring in the future. It is recommended that the record be made on the approved form within three days of the person making the record becoming aware of the incident. The record must be kept for one year after the record was made. Employers, self-employed people and principal contractors who fail to make a record of a particular incident at the workplace will not commit an offence if they:

• did not know about the incident;
• were incapacitated by the work caused illness or work injury; and
• make a record as soon as possible after recovery.

If the incident is a work caused illness, or work injury, the following persons must make a record of it:

• if it happened to a worker - the worker's employer;
• if it happened to an employer - the employer;
• if it happened to a self-employed person - the self-employed person;
• if it happened at a construction workplace - the principal contractor;

If the incident is a dangerous event, the following persons must make a record of it:

• if it happened at a workplace - the employer or self-employed person;
• if it happened at a construction workplace - the principal contractor.

F. RELEVANT DEFINITIONS

A notifiable incident is:

• an incident resulting in a person suffering a work injury that is a serious bodily injury, including a fatality;
• a work caused illness; or
• a dangerous event.

A work injury is:

• an injury to a person that requires first aid or medical treatment if the injury was caused by work, a workplace, a workplace activity or specified high risk plant; or
• the recurrence, aggravation, acceleration, exacerbation or deterioration of any existing injury in a person if:
  • first aid or medical treatment is required for the injury; and
  • work, a workplace, workplace activity or specified high risk plant caused the recurrence, aggravation, acceleration, exacerbation or deterioration; or
• any serious bodily injury, if the injury was caused by work, a workplace, a workplace activity or specified high risk plant.

A serious bodily injury means an injury to a person that causes:

• the injured person's death; or
• the loss of a distinct part or an organ of the injured person's body; or
• the injured person to be absent from the person's voluntary or paid employment for more than four normal working days.

A work caused illness is:

• an illness contracted by a person to which work, a workplace, a workplace activity or specified high risk plant was a significant contributing factor; or
• the recurrence, aggravation, acceleration, exacerbation or deterioration in a person of an existing illness if work, a workplace, a workplace activity or specified high risk plant was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration.

A dangerous event is:

• an event caused by specified high risk plant; or
• an event at a workplace caused by workplace activity
• if the event involves or could have involved exposure of persons to risk to their health and safety because of:
  • collapse, overturning, failure or malfunction of, or damage to, an item of specified high risk plant; or
  • collapse, or failure of an excavation or of any shoring supporting an excavation; or
  • collapse, or partial collapse of any part of a building or other structure; or
  • damage to any load bearing member of, or the failure of any brake, steering device or other control device of, a crane, hoist, conveyor, lift or escalator; or
  • implosion, explosion or fire; or
  • escape, spillage or leakage of any hazardous material or dangerous goods; or
  • fall or release from a height of any plant, substance or object; or
  • damage to a boiler, pressure vessel or refrigeration plant; or
  • uncontrolled explosion, fire or escape of gas or steam.

G. DEFENCES

It should be clear from the above that the legislation creates a position of almost strict liability. However, it is a defence to any charges which may be made under the workplace health and safety legislation if the defendant can prove:

• If a regulation or ministerial motive has been made about the way to prevent or minimise exposure to a risk, that the person followed the way prescribed in the regulation or notice to prevent the contravention;
• If an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk; and
  • The person adopted and followed a stated way to prevent the contravention; or
  • The person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention;
• If no regulation, ministerial motives, advisory standard or industry code of practice has been made about the exposure to a risk, that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention;
• That the commission of the offence was due to causes over which the person had no control.

H. CORPORATIONS

The general position is that where an employer is a corporate entity able to sue and be sued in its own name, the directors and other officers of the company will not generally be liable for the company's actions. This immunity applies to both the civil and criminal liability of the company. However, the workplace health and safety legislation makes specific provision for the prosecution of a corporation’s executive officers. In Queensland, the reverse onus of proof requires the individual to establish a defence in order to escape liability. It is a defence if the officer proves that:

• if he or she was in a position to influence the conduct of the corporation in relation to the offence that he or she exercised reasonable diligence to ensure the corporation complied with the provision; or
• he or she was not in a position to influence the conduct the corporation in relation to the offence.

I. ACCIDENT INVESTIGATIONS

After receiving notification of an accident, a workplace health and safety inspector will attend the workplace to conduct an investigation. It is normal for there to be some delay between the incident and the investigation. Workplace health and safety inspectors have statutory powers to carry out their functions which are very wide and include:

• Powers of entry, including the use of reasonable force;
• Conducting searches;
• Carrying out examinations and testing of plant equipment and substances;
• Dismantling plant and equipment;
• Taking samples for analysis;
• Removing items from the premises;
• Taking photographic or video evidence;
• Obtaining statements;
• Obtaining copies or originals of documents; and
• Requiring the employer’s or occupier’s assistance.

Workplace Health and Safety Queensland uses witness statements as one of the primary means for obtaining evidence during investigations. These interviews should commence by the issuing of a formal caution to the witness to ensure the admissibility of the evidence. There is no excuse for answering a question on the basis the answer may incriminate the person or the company. All questions must be answered, unless there is reasonable excuse.

If, after carrying out an investigation, it appears to the workplace health and safety inspector that a breach of the legislation has occurred, the inspector will generally conduct a final interview with a representative of the employer before any charges are laid.

J. PROSECUTIONS

Towards the end of an investigation, it is likely that the Workplace Health and Safety inspector will give some indication how the matter will progress. An inspector may:

• Issue an improvement or prohibition notice; and/or
• Issue a penalty notice;
• Commence proceedings; or
• Take no further action.

It is normal for prosecutions to follow all but minor workplace accidents. A formal prosecution may be commenced at any time up to two years after the accident.

K. WHAT AN EMPLOYER SHOULD DO FOLLOWING AN INCIDENT

An employer’s actions following an accident can have a critical impact on their ability to defend a prosecution or make a submission which will mitigate in the determination of any penalty. Employers should ensure the following.

1. Investigate thoroughly as soon as possible;

It is normal for accidents to have multiple causes. Accordingly, it is important that accidents are investigated accurately, avoiding the natural temptation to make assumptions, guesses or identify a single cause. It is important to gather evidence immediately given that there is normally a significant delay between an accident and the commencement of any prosecution. It is advisable for witnesses recollections to be recorded as soon after the accident as practical as their recollections will decrease as time goes on and may be influenced by intervening actions or assumptions. The statements obtained by the investigating workplace health and safety inspector should not be relied upon as they may result as only superficial picture.

2. Obtain legal advice and assistance

Where an accident occurs that is likely to result in a prosecution, it is always desirable for an employer to involve a solicitor at the investigatory stage. In addition to any advantages involved in having a solicitor present during workplace health and safety interviews, significant advantages may be gained through the use of legal professional privilege. Where external investigations or reports are required, these should be commissioned by the employer’s solicitor to ensure legal professional privilege attaches. Similarly, internal reports and witness statements should be prepared in conjunction with the solicitor with the report being addressed solely to the solicitor to maximise the prospects of privilege attaching to the documents.

3. Beware of providing opinions

During interviews, it is common for workplace health and safety inspectors to ask a witness for his or her opinion. A common question may be How do you think of this accident could have been prevented? Witnesses should avoid drawing conclusions, expressing personal opinions or making assumptions during interviews as the answers that are provided at this time will usually be used as evidence later. If a witness does not know an answer, or is unable to provide an answer with certainty, the witness should say so. If the witness is not certain of an answer, the witness may ask the inspector if he or she may check any records and provide the inspector with an answer at a later time. Witnesses should understand that accidents normally never have a single cause and it can take many months to determine the complete the understanding of what occurred.

4. Provide all relevant documentation

As part of their investigation, workplace health and safety inspectors will normally request documentation that may considered relevant and the employer should not hesitate to provide an inspector with any additional documentation that it considers relevant such as evidence of training, workplace risk assessments and service documentation. All documentation provided to the inspector will be used when determining whether a prosecution will commence.

However, caution should be exercised before obtaining any preliminary accident report so that it does not become part of the evidence in the case. Such reports if they are to be prepared, should be commissioned by your legal advisor so that they are likely to be subject to legal professional privilege and consequently copies may not be obtained form the prosecution.

In general terms, you should ensure that the employer, business or undertaking establishes and actively implements a workplace safety plan to ensure that the work it undertakes is conducted in a safe manner. This extends to satisfying yourselves that your sub-contractors are also undertaking their work in a safe manner. You should ensure that all sub-contractors have appropriate policies of insurance in place and their own detailed safety plans for conducting their work. You could perhaps establish a checklist system which could be regularly reviewed with your sub-contractors. In this way, you can minimise the likelihood of exposure to workplace health and safety charges and potential civil claims. It may be advisable to speak to a workplace health and safety consultant for advice on the detailed steps you should take.