Employer and employee obligations under the QLD OHS Act, employer duty of care and negligence, and OHS from an organising and campaigning perspective.

1. SAFETY MATTERS
WH&S IN THE WORKPLACE
Alana Heffernan
Patrick Turner
18 June 2015
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2. OUR HISTORY
 Founded in 1919
 Maurice Blackburn – distinguished lawyer and Labor member of
Parliament
 Dedicated to worker’s rights
 defense of underprivileged groups
 determined to make a genuine difference for people who
need help
 Fight hard for best possible outcome
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3. OUR SERVICES
 Employment & Industrial Law
 WorkCover
 Road Accident Injuries
 Medical Negligence
 Asbestos Diseases
 Superannuation & Disability Insurance
 Public Liability
 Faulty Products
 Comcare
 Will Disputes
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4. OUR OFFICE
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5. OUTLINE OF TODAY’S PRESENTATION
 Employer and employee obligations under the WHS Act (Qld)
 Offences
 Work Groups
 Role and powers of HSRs and Health & Safety Committees
 PINs
 Discriminatory, coercive and misleading conduct
 Negotiating WHS clauses in enterprise agreements
 OHS from a Public Liability perspective
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6. 1. EMPLOYER AND EMPLOYEE
OBLIGATIONS UNDER THE
WHS Act (Qld)
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7. REGULATORY FRAMEWORK
 National Model Act
─ adopted by all states except Victoria and Western Australia.
 Queensland Legislation
– Work Health and Safety Act 2011 (Qld)
– Work Health and Safety Regulation 2011 (Qld)
 Institutions overseeing WHS across Australia
─ Comcare
─ State regulators (such as Workplace Health and Safety Queensland)
─ Fair Work Commission
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8. WORK HEALTH AND SAFETY ACT 2011
 Legislation concerned with removing risk and prevention
• Not concerned with injuries and compensation
 Concept of ‘Person Conducting a Business or Undertaking’ (PCBU)
(s20)
 Most employers – companies, unincorporated associations, councils etc
 Managers, designers, manufacturers, importers, suppliers, installers
(ss22-26)
 Officers, workers ,other persons at a workplace have separate duties
(ss27-29)
 Duties of a PCBU are linked to the carrying out of work
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9. PCBU – PRIMARY DUTY OF CARE
So far as is reasonably practicable…
 Ensure health and safety of workers while at work
 Ensure others are not put at risk from work carried out (s19(1)-(2))
 Ensure:
– provision and maintenance of a work environment without risks to health and
safety, safe plant and structures, safe system of work;
– safe use, handling, storage of plant, structures and substances;
– provision of adequate facilities for welfare of workers; information, training,
instruction or supervision necessary to protect all persons; and,
– monitor health of workers and conditions at workplace
 In certain circumstances, must maintain accommodation premises
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10. PCBU – OTHER DUTIES
 PCBUs who manage or control workplaces, fixtures, fittings or plant, designers,
manufacturers, importers, suppliers, installers all owe further duties beyond the
primary duty (ss 20-26
 Duties under WHS Regulation – all PCBUs and industry-specific
 All PCBUs owe duties to:
– notify of ‘notifiable incident’ (death, serious injury/illness or a dangerous incident)
and preserve incident sites (ss37-38)
– consult with workers (s 47)
 All duty-holders owe a duty to:
– consult with all duty holders (s46)
 Officers of a PCBU must exercise due diligence to ensure PCBU complies with duties
and obligations under WHS Act (s27)
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11. REASONABLE PRACTICABILITY
 ‘Reasonably practicable’ (s18)
– Likelihood of the hazard or risk occurring;
– Degree of harm that might result from the hazard or risk;
– What person knows, or ought reasonably to know about the hazard or
the risk and ways of eliminating or reducing it;
– Availability and suitability of ways to eliminate or reduce risk;
– Cost of eliminating or reducing the risk.
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12. WORKERS’ DUTIES
 Take reasonable care for your own health and safety (s28(a))
 Take reasonable care of the health and safety of persons who may be
affected by your acts or omissions at a workplace (s28(b))
 Comply with reasonable instruction given by a PCBU to allow
compliance with the WHS Act (s28(c))
 Co-operate with any reasonable policy or procedure of PCBU relating
to health or safety at the workplace that has been notified (s28(d))
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13. 2. Offences
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14. OFFENCES – BREACH OF DUTY
 3 Categories of criminal offences for breach of health and safety duties:
– Reckless conduct—category 1 (s31)
– Failure to comply with health and safety duty—category 2 (s32)
– Failure to comply with health and safety duty—category 3 (s33)
 Exceptions– volunteers and unincorporated associations
 DPP can initiate proceedings for Category 1 offences
 WHSQ and all inspectors can initiate proceedings for all offences
 A person can request WHSQ bring a prosecution for a Category 1 or 2
offence within 6-12 months of alleged contravention
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15. PENALTIES
 Serious Penalties:
 Courts can also make:
– adverse publicity orders (s236)
– restoration orders (s237)
– work health and safety project
orders (s238)
– court ordered work health and
safety undertakings (s239)
– injunctions (s240)
– training orders (s241)
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Corporation Individual as PCBU or officer Individual as worker or other
Category 1 $3 million $600K, 5Y jail or both $300K, 5Y jail or both
Category 2 $1.5 million $300K $150K
Category 3 $500K $100K $50K

16. OTHER OFFENCES
WHS Act provides for many other offences, which have distinct penalties:
 Incident notification (ss38-39)
 Authorisations (ss41-45)
 Consultation (ss46-47)
 Establishment of Work Groups (ss52-57)
 HSRs (ss61,70-74, 97,99)
 Health & Safety Committees (ss75,79)
 Discriminatory, coercive or misleading conduct (ss104-108)
 WHS entry permit holders (ss118-151)
 WHSQ and inspectors (ss155-190)
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17. 3. WORK GROUPS
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18. EMPLOYEE REPRESENTATION
 WHS based on cooperation and consultation between all those at work
 Employee representation is important and is recognised as one of the
Objects of the WHS Act:
“…providing for fair and effective workplace representation,
consultation, cooperation and issue resolution in relation to work health
and safety”
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19. WORK GROUPS
 What are they?
– Negotiated and agreed groups of workers
– Share similar workplace health and safety interests and conditions
 Can be made up of workers:
– in one or more workplaces operated by a single employer; or
– of multiple employers at one or more workplaces
 There can be more than one Work Group in a workplace
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20. ESTABLISHING A WORK GROUP
 Employees can ask their employer for a Work Group to be established
(s 50)
 Purpose of the negotiations is to determine (s 52(3))
─ number and composition of work groups to be represented by HSRs
─ number of HSRs and deputy HSRs to be elected
─ workplace(s) to which the work groups will apply
─ the businesses or undertakings to which the work groups will apply
In addition, note: Matters to be taken into account in negotiations (s 17
WHS Regulation)
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21. MATTERS TO BE TAKEN INTO ACCOUNT
(S17 – WHS REGULATION)
• (a) the number of workers;
• (b) their views;
• (c) nature of each type of work carried out;
• (d) number and grouping of workers who
carry out the same/similar types of work;
• (e) areas/places where each type of work
is carried out;
• (f) extent to which any worker must move
from place to place while at work;
• (g) diversity of workers and their work;
• (h) nature of any hazards at the
workplace(s);
• (i) nature of risks at the workplace(s);
• (j) nature of engagement of each worker;
• (k) pattern of work carried out by workers,
i.e. full-time, part-time, casual or short-
term;
• (l) times at which work is carried out;
• (m) arrangements at the workplace(s)
relating to overtime or shift work.
Inspector can determine the particulars failing
agreement (s 54 –WHS Act)
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22. 4.ROLE AND POWERS OF
HSRS AND HEALTH & SAFETY
COMMITTEES
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23. POWERS OF HSRS
 Purpose of HSRs powers are to (s 68(1)):
– Represent the Work Group in relation to WHS
– Monitor measures taken by PCBUs in compliance with WHS Act and
regulations
– Investigate complaints from members of the Work Group
– Inquire into anything which appears to be a risk to the health and safety
of the Work Group
 WHS Act gives powers to HSRs but does not impose compulsory duties in
their capacity as HSRs (s 68(4))
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24. POWERS OF HSRS
 HSR has the power to do any of the following (s68(2)):
– Inspect any part of a workplace in which a member of the Work Group
works:
• after giving reasonable notice; or
• without notice immediately in the event of an incident or immediate
risk to health or safety
– Accompany an inspector during a workplace inspection of the workplace
or part of the workplace of their Work Group
– Request the establishment of Health and Safety Committee
– Represent one or more members of the Work Group at interviews on
health or safety matters between that person and an inspector or PCBU
– Seek the assistance of any person whenever necessary (subject to
restrictions on entry)
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25. WORKPLACE INSPECTIONS
 Inspections can take various forms, including:
– regular inspections of the workplace or particular activities of processes;
– specific inspections arising from complaints or concerns by members of
the Work Group;
– inspections before and following substantial change to the workplace,
e.g. to plant or work processes; and
– Inspections after an incident or injury
 The nature and extent of the inspections needed may depend on
circumstances including the frequency of injuries in that area or if likelihood
of injuries
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26. AMWU V VISY (NO 3) [2013] FCA 525
 Delegate and HSR Mr Zwart was suspended and given a warning after
tagging out a forklift because he could not hear the reversing warning
beeper
 AMWU brought a general protections claim claiming that the suspension
and warning was because Mr Zwart exercised workplace rights
 One of the workplace rights relied on was the right under s 58 of OHS Act to
inspect “any part of a workplace at which a member of the designated
workgroup works”
 Visy argued that there was no power to inspect the forklift only the
workplace “at which” not “on which”, “in which” or “with which” they work
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27. AMWU V VISY (NO 3) [2013] FCA 525
 Justice Murphy rejected Visy’s argument stating that it had “no merit”
 Not consistent with the objects of the OHS Act
 Would lead to absurd results
“For example, acceptance of the respondents’ construction would
mean that a health and safety representative could inspect the floor on
which an employee stood but not a piece of dangerous plant standing
on the floor and used in the work. “ Murphy J at [137]
 “Workplace” includes movable plant and equipment at the workplace.
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28. POWERS OF HSRS
 If after consulting with an employer a health and safety issue is not resolved
a HSR may:
– Issue a PIN (s 90(2))
– Can no longer direct that work cease
 An HSR may also deal with a health and safety issue by:
– Seeking the assistance of another person (for example an appropriately
qualified union official);
– Following an issue resolution procedure; or
– Seeking the assistance of an inspector if the issue is not resolved
through the resolution procedure
 HSRs are entitled to accompany inspectors during inspections (s 58(1))
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29. NEWMAN GOVERNMENT -
REDUCED POWERS OF HSR
 Removal of s85 – HSR can no longer direct member of Work Group to
cease work
 HSR’s assistant must provide at least 24 hours notice (but less than 14
days) to PCBUs and persons with management or control of the workplace
during usual hours
 PCBU may refuse entry to assistant on ‘reasonable grounds’ where
notice/information not given
 Work Health and Safety and Other Legislation Amendment Bill 2015 -
currently in committee but will likely be passed
 These powers likely to be restored
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30. HEALTH AND SAFETY COMMITTEES
 Purpose and benefits
─ Facilitate regular meetings between parties for the planning and
development of policies and procedures
─ Vehicle for the exchange of ideas
─ Bring together employees’ knowledge and experience of jobs and tasks
and the employers’ perspective of the workplace and business
requirements
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31. ESTABLISHMENT AND COMPOSITION
 Timeline for establishment (s75(1))
─ PCBU has two months from the time on the request of a HSR or 5 or
more workers
─ May also do so at their own initiative
 Constitution of HSC (s76)
─ Workers not nominated by PCBU must make up at least half the
membership
 Relevant HSRs automatically included
─ Must be consultation on the remaining membership (s 49)
─ Employer representatives should be persons involved at senior
management levels able to make decisions about health and safety
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32. FUNCTIONS OF HSC
 Facilitate cooperation between employers and employees in instigating,
developing and carrying out measures designed to ensure the health and
safety of workers at work
 Assist in developing health and safety standards, rules and procedures to
be followed out or complied with at the workplace
 Other functions as determined and agreed by the HSC and the PCBU
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33. OTHER IMPORTANT INFORMATION
 HSCs must meet at least every three months (s 78(a))
─ at any other reasonable time if at least half of the members request it
 HSCs can determine their own procedures for the organisation and
conducting of its meetings (s 72(5))
 There are no additional duties imposed by the WHS Act on workers who are
members of HSCs
 PCBUs must allow committee members time as reasonably necessary to
attend meetings, carry out functions and pay them.
 Also must allow access to information re. hazards, health and safety of
workers to HSC but require consent for information that identifies a worker
or could lead to identification of worker – this is to change.
 Should not be used for the resolution of health and safety disputes
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34. 4. PROVISIONAL IMPROVEMENT
NOTICES
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35. PROVISIONAL IMPROVEMENT
NOTICES (PINS)
 A PIN is a written direction requiring a person to remedy a breach or likely
breach of the WHS Act or Regulations.
 It is not compulsory to use a specific form to issue a PIN, however, there are
general requirements for form and content (ss 91 and 92).
 Prior to issuing a PIN HSR must consult with person about remedying
breach or likely breach of the matters or activities causing the breach of
likely breach (s 90(3)).
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36. PROVISIONAL IMPROVEMENT
NOTICES (PINS)
 HSR cannot issue a PIN if:
– The HSR has not:
• Completed the training required by the Regulations; or
• Completed training under corresponding WHS laws (i.e. in another
State that also has uniform WHS laws) (s 90(4).
– An inspector has already issued, or decided not to issue, a PIN (s
90(5)).
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37. WHEN CAN A PIN BE ISSUED?
 After consultation a PIN can be issued if:
– The HSR believed on reasonable grounds that a person is contravening
a provision of the WHS Act or the regulations; or
– Has contravened a provision in circumstances that make it likely that the
contravention will continue or be repeated.
 Examples of contraventions that may continue to be repeated include:
– Excessive noise levels in the workplace;
– Ongoing exposure to dangerous chemicals;
– Unguarded machines; or
– Lack of consultation with employees or HSRs about safety matters.
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38. CONSULTATION
Workplace Health and Safety Queensland will consider that consultation
has occurred prior to the issue of a PIN if the HSR has:
• verbally or in writing provided information to the person about the
contravention and ways to remedy the contravention or likely
contravention or the things or operations causing the contravention
or likely contravention
• allowed the person an opportunity to express their views and to
contribute within a reasonable time to remedy the alleged
contravention or resolve the matters or activities causing the alleged
contravention
• taken into account the view of the person before issuing the PIN
• advised the person of the outcome of consultation in a timely
manner.
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39. WHO CAN A PIN BE ISSUED TO?
 A PIN can be issued to any person.
 NB: any conduct engaged in on behalf of a body corporate by an employee,
agent or officer of the body corporate acting within the actual or apparent
scope of his or her employment, or within his or her actual or apparent
authority, is conduct also engaged in by the body corporate.” (s 244)
 There is no express limit about the conduct complained of being at the
workplace, i.e., PINs could be issued to persons such as the designer of a
plant, buildings or structures.
 However, HSR’s powers are limited to matters relating to the workers in the
work group (see s 68). Therefore, would not be able to raise matters about
general public safety.
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40. INFORMATION ON A PIN
 A provisional improvement notice must:
– be in writing (s 91);
– state the representative's belief on which the issue of the notice is
based and the grounds for that belief (s 92(a)); and
– specify the provision of this Act or the regulations that the representative
considers has been or is likely to be contravened (s 92(b));
– briefly state how the provision is being contravened (s 92(c)); and
– specify a day before which the person is required to remedy the
contravention or likely contravention (must be at least 8 days after
issuing of PIN) (s 92(d)).
 PIN can also give directions about fixing the problems, but not required to
do so (s 93).
 Separate PINs should be completed for each contravention otherwise PIN
may be open to challenge
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41. INFORMATION ON A PIN
 In Chysostomou v VWA [2014] VCAT 176 the applicant had lodged a PIN in
relation to Train Operating Standards that allow the operation of trains:
– “with failed or inoperative train headlights during the hours of daylight
and darkness for a period of up to 22 hours thus decreasing the visibility
of trains approaching unprotected pedestrian crossings, level crossings,
platforms or person(s) conducting works on or near the rail line” and
– “with cracked or smashed Driver windscreens for a period of up to 22
hours on the Driver’s side or for an indefinite period of time if the
windscreen is smashed or cracked on the off side of the windscreen”
 Senior Member Davis ordered the applicant to provide more particulars
about why it is alleged that the system of work complained of is unsafe and
the reasons it is unsafe.
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42. AMENDMENTS TO PIN
 HSRs may make minor amendments to a PIN after it has been issued (s
94).
 The changes must be restricted to “minor” changes:
(a) for clarification; or
(b) to correct errors or references; or
(c) to reflect changes of address or other circumstances.
 A PIN can also be cancelled by the HSR, by giving written notice to the
recipient (s 96).
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43. WHAT HAPPENS AFTER A PIN IS
ISSUED?
 A person who has been issued with a PIN must, as soon as practicable,
display a copy of the notice in a prominent place at or near the workplace,
or part of the workplace, at which work is being carried out that is affected
by the notice (s 97). NB – this is a civil remedy provision
 A person issued with a PIN must comply with it within the specified time
frame or dispute the PIN by calling an inspector (s 99).
 It is an offence not to comply with a PIN in the time specified in
circumstances where an inspector has not been called.
 If disputing a PIN, recipient must seek a review from the regulator within 7
days (s 100).
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44. INSPECTORS AND PINS
 If called the inspector may perform any functions or exercise powers under
the WHS Act that they consider reasonably necessary in the circumstances.
 Inspector must enquire into the circumstances relating to the issuing of the
PIN with the HSR who issued it and why the PIN has been disputed (s 101).
 The inspector will then do one of the following:
– Affirm the PIN
– Affirm the PIN with modifications
– Cancel the PIN (s 102).
 After making their decision the inspector will issue a written notice to the
HSR setting our the basis for the inspector’s decision (s 102).
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45. MISTAKES IN PINS
 A PIN will be invalid if it does not contain the matters in s 91 and 92.
 A PIN is not invalid merely because of:
– A formal defect or irregularity; or
– A failure to us the correct name of the person as long as the notice
sufficiently identifies the person (s 98).
 If a defect or irregularity, when viewed objectively, could mislead the person
receiving the PIN then the PIN will be invalid. For example if:
– the PIN is illegible or capable of multiple meanings
– if the date for compliance is not clear; or
– if the wrong section of the Act or regulations are named and therefore is
misleading about the corrective action required.
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46. DIRECTIONS FOR WORK TO CEASE
 A worker may cease, or refuse to carry out, work if the worker has a
reasonable concern that to carry out the work would expose the worker to a
serious risk to the worker’s health or safety, emanating from an immediate
or imminent exposure to a hazard (s 84).
 No longer an express right for HSRs to direct the cessation of work in
Queensland.
 Employer may direct employees to suitable alternative work (s 87).
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47. REVIEWING DECISIONS –
INTERNAL REVIEW
 Section 223 and schedule 2A sets out the decisions that are reviewable
under the WHS Act.
 Reviewable decisions include a decision under s 102 to affirm (with or
without modifications) or cancel a provisional improvement notice.
 Applications for IR must be made with 14 days and made in the form
approved by the regulator (s 224).
 If an IR application is made the authority must make a decision to affirm or
vary the reviewable decision or set aside the reviewable decision and
substitute it with another decision within 14 days of receipt of the application
(s 226).
 NB: the 14 days ceases to run if the IR requires further information (s 226).
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48. REVIEWING DECISIONS – QCAT
 A person can apply to QCAT for review of a reviewable decision or a
Internal Review decision made by the regulator.
 Some decisions are reviewable in the QIRC, however, decisions with
respect to PINs are only reviewable by QCAT (see schedule 2A of WHS
Act).
 Applications to QCAT are dealt with under the QCAT Act. No time limit for
application in WHS Act, so 28 days applies.
 QCAT then holds a de novo hearing where it may affirm, vary or set aside
the decision under review based on the evidence before it (s 20 of QCAT
Act).
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49. 5. DISCRIMINATORY,
COERCIVE AND MISLEADING
CONDUCT
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50. DISCRIMINATORY CONDUCT
 It is an offence under the WHS Act to engage in “discriminatory” conduct (s
104).
 The discriminatory must be the dominant reason for the conduct (s 105).
 Unlike other provisions of the WHS Act, a person alleging a contravention of
this provision can initiate civil proceedings in the Magistrates Court.
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51. WHAT IS DISCRIMINATION? – S 105
 Similar, though broader, than adverse action.
 A person engages in “discriminatory conduct” if the person:
– dismisses a worker; or
– terminates a contract for services with a worker; or
– puts a worker to his or her detriment in the engagement of the worker;
or
– alters the position of a worker to the worker’s detriment; or
– refuses or fails to offer to engage a prospective worker; or
– treats a prospective worker less favourably than another prospective
worker would be treated in offering terms of engagement; or
– the person terminates a commercial arrangement with another person;
or
– the person refuses or fails to enter into a commercial arrangement with
another person.
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52. PROHIBITED REASON – S 106
 Also broad, but only relates to health and safety matters.
 A person engaging in any of the following is a prohibited reason:
– is, has been or proposes to be a health and safety representative or a
member of a health and safety committee; or
– undertakes, has undertaken or proposes to undertake another role
under this Act; or
– exercises a power or performs a function or has exercised a power or
performed a function or proposes to exercise a power or perform a
function as a health and safety representative or as a member of a
health and safety committee; or
– exercises, has exercised or proposes to exercise a power under this Act
or exercises, has exercised or proposes to exercise a power under this
Act in a particular way; or
– performs, has performed or proposes to perform a function under this
Act or performs, has performed or
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53. WHAT IS A PROHIBITED REASON?...
– proposes to perform a function under this Act in a particular way; or
– refrains from, has refrained from or proposes to refrain from exercising a
power or performing a function under this Act or refrains from, has
refrained from or proposes to refrain from exercising a power or
performing a function under this Act in a particular way; or
– assists or has assisted or proposes to assist, or gives or has given or
proposes to give any information to any person exercising a power or
performing a function under this Act; or
– raises or has raised or proposes to raise an issue or concern about
work health and safety with—
• the person conducting a business or undertaking; or
• an inspector; or
• a WHS entry permit holder; or
• a health and safety representative; or
• a member of a health and safety committee; or
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54. WHAT IS A PROHIBITED REASON?...
• another worker; or
• any other person who has a duty under this Act in relation to the
matter; or
• any other person exercising a power or performing a function under
this Act; or
– is involved in, has been involved in or proposes to be involved in
resolving a work health and safety issue under this Act; or
– is taking action, has taken action or proposes to take action to seek
compliance by any person with any duty
– or obligation under this Act.
 NB: maximum penalty is 1000 penalty units. Can also seek compensatory
and general damages.
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55. COERCION, ETC – S108
 Similar to coercion provisions in the FW Act, however, with the addition of
“inducement”.
 A person must not organise or take, or threaten to organise or take, any
action against another person with intent to coerce or induce the other
person, or a third person—
– to exercise or not to exercise a power, or to propose to exercise or not
to exercise a power, under this Act; or
– to perform or not to perform a function, or to propose to perform or not
to perform a function, under this Act; or
– to exercise or not to exercise a power or perform a function, or to
propose to exercise or not to exercise a power or perform a function, in
a particular way; or
– to refrain from seeking, or continuing to undertake, a role under this Act.
 Can also initiate civil proceedings to address the conduct.
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56. MISREPRESENTATIONS – S109
 A person must not knowingly or recklessly make a false or misleading
representation to another person about that other person’s—
– rights or obligations under this Act; or
– ability to initiate, or participate in, a process or proceedings under this
Act; or
– ability to make a complaint or inquiry to a person or body empowered
under this Act to seek compliance with this Act.
 NB: person must have been expected to rely on representation.
 No access to civil proceedings.
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57. CRIMINAL PROCEEDINGS
 A person who engages in discriminatory or coercive conduct can be the
subject of criminal proceedings (s 110).
 If a person is convicted of engaging in discriminatory or coercive conduct,
can be ordered to (s 111):
– pay compensation; and/or
– Reinstate the worker; or
– Employ the worker.
 NB: “a legal burden of proof”. This requires the defendant to establish the
exception or defence on the balance of probabilities. Once this is done, the
prosecution must refute the exception or defence beyond reasonable doubt.
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58. CIVIL PROCEEDINGS
 Can initiate proceedings for discrimination or coercion/inducement in the
Magistrates Court (s 112(2)).
 Must be affected by the alleged conduct, or be authorised to represent the
affected person (i.e. a Union) (s 113).
 Can seek:
– Injunctive relief;
– For discriminatory conduct – compensation;
– For discriminatory conduct – reinstatement or re-employment;
– For either action – any other order the Court considers appropriate.
 Above not to be considered as restrictive on Court’s powers (s 112(5)).
 Time limit for proceedings is 1 year (s 113).
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59. CIVIL PROCEEDINGS…
 Reverse onus of proof – prohibited reason presumed to be the substantial
reason for the conduct unless the defendant proves otherwise (s 113).
 It is a defence to a proceeding if the defendant proves that—
– the conduct was reasonable in the circumstances; and
– a substantial reason for the conduct was to comply with the
requirements of this Act or a corresponding WHS law.
 NB: “a legal burden of proof”. This requires the defendant to establish the
exception or defence on the balance of probabilities. Once this is done, the
prosecution must refute the exception or defence beyond reasonable doubt.
 Cannot seek compensation in civil proceedings if also receiving
compensation in criminal proceedings (s 114).
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60. CIVIL PROCEEDINGS…
 Prohibited from multiple actions ( s 115).
 Would not be able to initiate proceedings under WHS Act if also initiated
proceedings under Fair Work, Industrial Relations or Anti-Discrimination
legislation for the same matter.
 Cannot recover compensation if recovered compensation under any other
Commonwealth or State law with respect to the same matter (may be an
issue with workers’ compensation)
 Cannot commence or continue proceedings if failed in a proceeding under
another Act, in relation to the same matter (except workers’ compensation
claims).
 Magistrates Court is a costs jurisdiction.
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61. 6. NEGOTIATING WHS
CLAUSES IN ENTERPRISE
AGREEMENTS
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62. WHY PUT WHS CLAUSES IN
EAs?
 Difficulties with obtaining enforcement of WHS Act
 Employees/Unions cannot sue for breach of WHS Act (except
discrimination and coercion)
 Broad remedies available for contraventions of EAs under the FW
Act
 No compensation available in FWC bullying jurisdiction.
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63. POTENTIAL PITFALLS
 As with any EA clause the exact wording is important.
 Any clause should be clear in imposing obligations on the
employer as opposed to a series of “hortatory” or “aspirational”
statements. See Reeves v MaxiTRANS Australia Pty Ltd [2009]
FCA 970; (2009) 188 IR 297
 If the clause is ambiguous or confusing it may not be enforceable.
See National Tertiary Education Union v La Trobe University
[2014] FCA 1330
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64. WHS CLAUSES IN AGREEMENTS
64
2.2 OUR RESPONSIBILITIES TO YOU
2.2.1 To abide by the requirements of our policies and procedures as
varied from time to time.
2.2.2 To abide by the requirements of relevant legislation and laws that
apply to the employment relationship including:
(a) industrial relations;
(b) Anti-discrimination;
(c) Superannuation;
(d) Long service leave
(e) Occupational health and safety;
(f) Workers’ compensation;
(g) Repatriation and return Soldiers;
(h) Taxation; and
(g) Privacy.
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65. PUBLIC LIABILITY CLAIMS
 What about?
– A subcontractor or independent contractor
– An employee working for a host employer
– An employee working on a large site managed by a principal
 What duties are owed if, any?
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66. RELEVANT LEGISLATION
 Civil Liability Act (Qld) 2003
 Personal Injuries Proceedings Act (Qld) 2002
 General common law duties
 Obligations and duties under the contract of service
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67. IS THERE A DUTY OF CARE OWED?
 Host employer arrangement – yes generally.
 An employment-like relationship could give rise to a similar high duty of care
to that of employer-employee relationship: Stevens v Brodribb Sawmilling –
control test
 Principal – independent contractor – depends on the facts of the case – a
duty does not automatically arise
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68. CASE STUDY
 TNT Australia Pty Ltd v Christie [2003] NSWCA 47
 Facts: P employed by employment agency, Manpower. P worked at
brewery operated by TNT. P injured when a forklift malfunctioned and
moved backwards over his foot.
 Held: TNT and the P were in a position analogous to that of employer and
employee, giving rise to a non-delegable duty of care upon TNT. In finding
Manpower also liable, that an employer who operates a labour hire
business does not abdicate its non-delegable duty simply because its
employees are sent to work for a client.
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69. DUTY OF CARE: EXTENT
 The duty of care does not require that the host company/principal contractor
to
– provide training to sub-contractors in the safe methods of performing the
subcontractor's specialised work
 A principal contractor can engage a competent and independent contractor
to perform the work and rely on their skill
 A principal contractors and are unlikely to possess detailed knowledge of
safe work methods across the spectrum of trades involved in construction
work
 If a principal contractor fails to engage a competent contractor they too may
be negligent for the failure of the contractor to perform some type of work
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70. CASE STUDY
 In April 2003, a labour-hire employee working for Roche Mining Pty Limited
fell approximately 2.5m while climbing into a Caterpillar 785B dump truck.
 He suffered serious injuries to his pelvis, lower back and hips.
 The worker claimed damages for his injuries against Roche, which was in
charge of the running of the Coal Mine he was working on and owned the
plant and equipment used at the mine.
 He alleged that Roche failed to provide him with a safe system of work,
requiring that the Cat be parked in a way that increased the risk of its
operator falling, and failed to provide a safe means of accessing the cabin
of the truck.
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71. CASE STUDY (CONT.)
 Roche argued the worker was a ‘highly qualified' and ‘experienced driver' of
specialised equipment and did not require any instruction, supervision,
training or control.
 Roche also contended that the worker had contributed to the fall, by failing
to maintain ‘three points of contact' while ascending the ladder.
 Held that the relationship between Roche and the worker, while not being
employer and employee, was ‘significantly closer' than that between a
principal and independent contractor and they were liable
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72. GENERAL PRINCIPLES
 Civil Liability Act
– S 9(1) – A person does not breach a duty to take precautions against a
risk of harm unless:
• Risk was foreseeable (knew or ought to have known of risk)
• Risk was not insignificant and
• A reasonable person in the circumstances would have taken the
precautions
– S 9(2) – in deciding whether reasonable person would have taken the
risk court will look at:
• Probability harm would occur if care not taken – s 9(2)(a);
• Likely seriousness of the harm – s 9(2)(b);
• Burden of taking precautions – s 9(2)(c); and
• Social utility of activity creating risk of harm – s 9(2)(d).
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73. GENERAL PRINCIPLES
– Section 10
• The fact that a risk if harm could have been avoided by doing
something in a different way does not of itself give rise to/affect
liability for the way the thing was done and
• The subsequent taking of action that would have avoided a risk if
done earlier does not give rise to/affect liability in relation to the risk
and does not of itself constitute an admission of liability
 The risk of harm is one made in prospect and not retrospect. Hindsight has
no part to play
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74. QUESTIONS?
 Alison Barrett, Principal
 Ph: 07 3016 0333
 Email: abarrett@mauriceblackburn.com.au
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Workplace
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75. Personal Injury