In this issue
We report on amendments to Queensland's WHS laws; new harmonised WHS laws to be introduced in Western Australia; the Fair Work Commission's decision upholding saliva drug testing as the most appropriate method; and the first WHS model laws prosecution.
In brief: Amendments to the Queensland Work Health and Safety Act 2011 and Electrical Safety Act 2002 have passed through Parliament. Lawyers Laura Miller and Dan McDonnell report on the amendments.
In 2012, the Queensland Government commissioned a review of the impact of the national model WHS laws on Queensland businesses. Industry groups, particularly in the construction sector, raised a number of concerns regarding the compliance burden of the model laws. The Work Health and Safety and Other Legislation Amendment Bill 2014 seeks to implement the findings of the review. The amendments will take effect once the Bill has received assent.
Key changes to the Work Health and Safety Act
The Bill will amend the Work Health and Safety Act 2011 (Qld) (the WHS Act) in the following ways:
- Before entering a workplace to inquire into suspected breaches of the WHS Act, union officials will be obliged to give at least 24 hours' notice to both the person conducting the business or undertaking and the person with management or control of the workplace. If a union official enters a workplace without the required notice, a maximum penalty of $22,000 will apply.
- The requirement for business owners to provide the WHS regulator with an up-to-date list of health and safety representatives will be removed.
- The power of health and safety representatives to direct a worker to cease work if there are concerns that the worker would be exposed to serious health or safety risks, will be removed. However, we note that this power was aligned with the common law right employees have to refuse to work in the same circumstances.
Key changes to Queensland's Electrical Safety Act
The Bill will amend the Electrical Safety Act 2002 (Qld) (the ES Act) to increase the maximum penalty that may be imposed for breaches of the Electrical Safety Regulation 2002 from $4400 to $33,000. This amendment will ensure that consistent penalties are applied for breaches of all regulations made under the ES Act and will also ensure that nationally consistent penalties apply to offences under the Electrical Safety Regulation 2002.
In brief: New health and safety laws for WA are expected to be introduced by the end of 2014. Special Counsel Eleanor Jewell and Lawyer Dan McDonnell report.
How does it affect you?
- Company officers and senior managers will need to exercise due diligence to ensure the company complies with the new laws to avoid facing harsh individual penalties.
- Tougher penalties are likely to be introduced for all health and safety breaches.
WA is expected to introduce the national model WHS laws for general industry and the resources sector by September 2014, albeit with some amendments. The remaining states and territories, except Victoria, have adopted the model laws already.
The Bill for general industry is proposed to replace the Occupational Safety and Health Act 1984 (WA).
The WHS (Resources) Bill is intended to replace the existing Mines Safety and Inspection Act 1994 (WA), and the safety provisions in the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum Pipelines Act 1969 (WA) and the Petroleum (Submerged Lands) Act 1982 (WA).
What will the Bills look like?
According to the Department of Mines and Petroleum's ministerial advisory panel on safety legislation reform, the Bills will conform with approximately 95 per cent of the model laws.
We expect the model laws will not be adopted in their entirety, given the Western Australian Government's reluctance to incorporate four aspects of the model laws, being:
- union right of entry;
- the capacity of health and safety representatives to direct work to cease;
- a reverse onus of proof in discrimination matters; and
- maximum penalty levels that are, in its view, overly punitive.
While the model laws are very similar in scope and effect to the current health and safety laws, the following are three of the key changes that will have a practical impact on the obligations and liability of duty holders:
- Where there are multiple duty holders with an overlapping duty, these duty holders will be subject to an express positive duty to consult, cooperate and coordinate their activities with each other.
- There will be an increased onus on all company officers and senior management (including mine managers) to exercise 'due diligence' to ensure that the company complies with its duties.
- The maximum penalties will be higher than those under the current safety laws in WA. It is most likely that the maximum penalty levels under the two Bills will be a compromise between the model laws and the current safety laws in WA.
In brief: In a recent decision, the Fair Work Commission has found that a requirement in a drug and alcohol policy to take a second urine test following a positive saliva test was unjust and unreasonable. Lawyers Dan McDonnell and Arlou Arteta report.
How does it affect you?
- When introducing or amending a drug testing policy, employers should ensure that testing procedures are just and reasonable in the circumstances.
- The Fair Work Commission (the FWC) is starting to more consistently find that saliva testing is a more appropriate method for drug testing than urine testing.
A number of recent cases have considered the comparative suitability of urine and saliva drug testing (Please see 'Recent developments in drug testing' article in our Focus: Occupational Health and Safety). Most recently, the FWC found that saliva testing is an appropriate method of detecting recent drug use, even in light of the National Association of Testing Authorities withdrawal of its accreditation for saliva testing (Please see 'Saliva drug testing the most appropriate' article in our Focus: Workplace Relations).
MUA v DP World
In the most recent case on the issue, The Maritime Union of Australia (MUA) v DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World Melbourne Limited; DP World Sydney Limited (DP World)1, the MUA disputed terms in DP World's Alcohol and Other Drugs Policy (the Policy) that provided that, if the result of an original saliva drug test was positive, a subsequent urine test would be required for confirmation purposes.
The MUA contended that urine testing should not be allowed under the Policy and that any second test following a positive result should be a saliva test. The MUA asserted that it would be unjust and unreasonable to invade the privacy of an individual by making them take a further test that could result in finding out information about an individual's lifestyle rather than their ability to work.
DP World argued that the second test was required to achieve the purpose of the Policy and the intrusion into the private life of the individual was outweighed by this benefit.
The question for the FWC to consider was whether it was unjust and unreasonable to impose urine testing for the second analysis.
Following consideration of expert evidence, the FWC found that:
- A second urine test would not provide any more information than a saliva test.
- Urine testing could reveal personal choices of individuals that have no effect on their ability to work, which could lead to serious disciplinary consequences such as dismissal.
- Consequently, the use of urine testing after a positive saliva test was unjust and unreasonable.
In brief: Cases under the model WHS laws are likely to be decided in a similar way as decisions under previous safety legislation. Senior Associate Andrew Stirling reports on what may be the first successful prosecution of a defended charge under the model WHS laws.
How does it affect you?
- As expected, prosecutions under the model WHS laws are very similar to prosecutions under previous safety legislation.
- Courts are likely to have regard to post-incident controls implemented by a defendant in determining what would have been reasonably practicable to do before an incident occurs.
There have been a number of persons conducting a business or undertaking prosecuted under the model WHS laws. However, as far as Allens is aware, none of these prosecutions have been defended until now.
Sunshine Food Network Pty Ltd was prosecuted by Work Health and Safety Queensland (WHSQ) following an incident in its food processing kitchen. An employee suffered severe burns when a deep fryer overturned onto her when she was decanting hot oil from the fryer.
Immediately following the incident, a WHS inspector attended the worksite and issued Sunshine Food Network with a prohibition notice regarding the decanting of the oil. This notice was lifted when the company issued a safe work procedure covering the cleaning of the fryers. The safe work procedure required that fryers be cleaned only once the oil was cold, which (if complied with) would eliminate the risk of burns.
WHSQ charged Sunshine Food Network for failing to implement the following reasonable practicable controls in breach of the WHS laws:
- a system of instruction and supervision to ensure that the deep fryers were not decanted while the oil was still hot; and
- the provision of personal protective equipment to ensure workers are not burnt by hot oil.
Sunshine Food Network pleaded not guilty to the charge.
The Magistrates Court of Queensland found Sunshine Food Network guilty2, finding that:
- the system of instruction and supervision was very limited; and
- there was no reason advanced by the defendant why an instruction could not have been given to the employee to decant the oil when it was cool.
The oil did not solidify when cooled and was capable of being filtered at a lower temperature using the same filtering process. This fact was reflected in the safe work procedure issued by the defendant after the incident.
-  FWC1523.
- David Ian Fletcher AND Sunshine Food Network Pty Ltd  MAG-00140884/13(8) (19 March 2014).