As the year comes to a close we look back at 2017 and give you a short Legal recap of the changes which are often inspired by tragic events. Law-makers moved to tighten restrictions and strengthen penalties in a number of different fields over the course of 2017 with some very notable changes as you will read below.

Industrial Manslaughter Laws

In response to the perceived crisis in the Queensland construction industry and the Dreamworld tragedy, the Queensland government introduced new industrial manslaughter laws.

These laws, which have just come into operation, are likely to have a significant impact on the manner in which fatal incidents are investigated and prosecuted in that State going forward.

The regulator will now be able to prosecute both a person conducting a business or undertaking (PCBU) and a senior officer if:

  • a worker dies in the course of carrying out work (including where the worker is on a break) for the business or undertaking (or is injured in the course of carrying out work for the business or undertaking and later dies); or
  • the PCBU’s or senior officer’s conduct (either by act or omission) causes the death of the worker; or
  • the PCBU or senior officer is negligent about causing the death of the worker by their conduct.

If the offence is proved to the criminal standard, then the PCBU will face a penalty of up to $10 million if it is a corporation or, in the case of a senior officer or PCBU who is an individual, they will face up to 20 years’ imprisonment.

Some of the key issues that will arise in enforcing the new laws will include:

  • examining whether or not someone’s conduct ‘causes’ the death by substantially contributing to the death or not;
  • how investigators will conduct interviews with senior officers who could potentially be charged with criminal manslaughter and whether they will be afforded the protections otherwise available to an individual being investigated by the police for a similar crime; and
  • the approach a senior officer should take to participating in the PCBU’s own internal investigation and whether they should seek independent legal representation.

This is not clearly defined yet but it is the first step and one which I think will be followed be other states as peoples view about deaths at work clarify.

Non-conforming building products

The Grenfell tower fire in the UK, following on from the Lacrosse building fire in Melbourne a few years earlier, led to a nationwide focus on the use of non-conforming building products. Across Australia, audits were undertaken by government to determine the level of risk posed to the community from potentially unsafe products like aluminium composite panels.

Legislation has been introduced to combat the perceived risk to health and safety from these products. In NSW the Building Products (Safety) Act 2017 was introduced. Among other regulatory powers such as the ability to ban the use of unsafe products and issue rectification orders, the Act gives the regulator a raft of investigatory powers to support the identification and elimination of unsafe building products.

The application of the Act is much broader than cladding and its reach is not confined to residential buildings. The NSW laws followed on from legislative amendments in Queensland that also banned non-conforming building products.

If you operate in the construction industry it’s important to be across these changes as they may have serious flow on effects for you, especially if you import any products yourself or get products through a ‘discount’ supplier.

New international standard

Although not a legislative change, the work health and safety (WHS) international standard, ‘ISO 45001’, has been approved in its final form this year and is likely to be published in March 2018.

As with the current Australian/New Zealand standard AS/NZS 4801, the international standard ISO 45001 is designed to provide organisations with a framework for creating a safe workplace by implementing systems and processes to eliminate or reduce workplace injury as well as continually improve WHS performance.

The standard will help an organisation to fulfil its legal requirements under the Australian safety laws by outlining an approach for the implementation of reasonably practicable steps to ensure safety. In a sign of an increased international focus on leadership as a critical component in ensuring better safety outcomes, the new standard includes greater requirements on top management to demonstrate leadership and commitment for the protection of all workers’ safety.

Implementing and auditing against the new standard will be a matter for businesses to consider closely in 2018, particularly those businesses who are looking to ensure that they have accreditation or certification, including those wishing to tender for work.

Although this only applies to a small number of our clients it will be an important change when it finally flows through and will have an effect for all companies in the end.

Conclusion

In short, there have been a number of significant developments this year from a legislative and standards point of view in work health and safety.

These changes are likely to shape the manner in which regulators deal with businesses in 2018, particularly in the construction industriy, but more generally across all organisations and industries with a focus on senior managers.

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