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Workplace Health and Safety and Other Legislation Amendment Bill 2008
Workplace Health and Safety and Other
Legislation Amendment Bill 2008
Explanatory notes
General Outline
Short Title
The short title of the Bill is the Workplace Health and Safety and Other
Legislation Amendment Bill 2008.
Policy Objectives
The Bill gives effect to recommendations arising from the Queensland
review of the Workplace Health and Safety Enforcement Framework and
introduces other minor amendments to ensure the continued efficient and
effective operation of Queensland's workplace health and safety
arrangements.
The amendments to the Workers' Compensation and Rehabilitation Act
will introduce new entitlements for dependants of sufferers of work-related
latent onset injuries, such as mesothelioma.
Reasons for the Bill
Workplace Health and Safety
In September 2007, Mr Robin Stewart-Crompton was commissioned by the
Department of Employment and Industrial Relations to conduct an
independent review into the current Workplace Health and Safety
Enforcement Framework (the framework). The review was initiated
following an approach by some trade unions raising general concerns over
Workplace Health and Safety Queensland's (WHSQ) approach to
enforcement.
The purpose of the review was to ensure the framework remains relevant
and that it continues to provide the necessary deterrence to breaches of
Queensland's workplace health and safety and electrical safety laws.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
The review's terms of reference included consideration of:
· level of deterrence afforded by the current enforcement and
prosecution policy;
· balance of effort between advisory, investigation and prosecution
priorities;
· current jurisdictional arrangements;
· expansion of enforcement and prosecution options; and
· sufficiency of compliance resources in terms of numbers and skills.
Since the completion of the review, the Federal Government initiated a
national review into model occupational health and safety (OHS) laws and
appointed Robin Stewart-Crompton to chair the national review panel. The
final report is due by February 2009.
The framework review made 50 recommendations. It is proposed to
implement all administrative recommendations and most of the
recommendations proposing legislative amendment, on the basis that they
are consistent with other jurisdictions, form part of the National Model
OHS legislation, or streamline Queensland's legislative procedures. In
addition, one amendment implements a recommendation of an earlier
review of the operation of WHSQ by Peter Phair and Frank Peach.
Electrical Safety Act 2002
The legislative amendments being made to the Workplace Health and
Safety Act 1995 (WHS Act) as a result of the review will also be mirrored
in the Electrical Safety Act 2002. The only exception relates to allowing
Workplace Health and Safety Representatives (WHSRs) to issue
Provisional Improvement Notices (PINS). While PINS may be issued on
electrical safety matters, the provisions for WHSRs and their functions are
contained within the WHS Act.
Workers' Compensation and Rehabilitation Act 2003
Following representations from the Queensland Asbestos Related Disease
Support Society, the Workers' Compensation and Rehabilitation Act 2003
will be amended to introduce new arrangements for dependants of terminal
latent onset disease (e.g. mesothelioma) sufferers.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
Achievement of Objectives
Workplace Health and Safety and Electrical Safety
The Bill achieves its objectives by adopting the following provisions which
are consistent with other jurisdictions and streamline Queensland's
legislative arrangements:
Nationally consistent
· commencing proceedings within two years of a coronial inquest or
inquiry;
· allowing for prosecution of government departments under the
Workplace Health and Safety Act 1995 and the Electrical Safety Act
2002;
· allowing Workplace Health and Safety Representatives to issue
Provisional Improvement Notices; and
· clarifying workplace health and safety inspector immunity for giving
information and advice.
Streamlines legislative arrangements
· presentation of victim impact statements at the sentencing stage; and
· Industrial Magistrates Court rather than Supreme Court to have
jurisdiction over compliance with prohibition and improvement
notices.
Miscellaneous Amendments
· separate bonded asbestos containing material removal from the
definition of a `prescribed activity' and thus the requirement to
appoint a principal contractor and prepare a construction safety plan -
the preparation of an Asbestos Removal Plan and safe work method
statement are considered adequate in the circumstances;
· replace the term `workplace' in various sections with the more general
terms `relevant place' - which then properly accounts for WHSQ
jurisdiction over specified high risk plant; and
· ensure inspectors can lawfully require a person to present their licence
to perform high risk work or earthmoving or particular crane
certificate when requested.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
Workers' Compensation and Rehabilitation Act 2003
The Bill provides a new lump sum entitlement of 15 per cent of the
maximum death benefit for dependants of a worker who had already
received a payment of lump sum compensation or damages for a latent
onset injury that is a terminal condition. In the same situation, reasonable
funeral expenses of 2 per cent of the maximum death benefit will be
available to dependants.
The Bill will give insurers the ability to pay these two new lump sum
entitlements at the time the statutory lump sum payment to the worker is
paid.
Alternative to the Bill
The policy objectives can only be achieved by legislative enactment.
Estimated Cost for Government Implementation
Costs associated with amendments to workplace health and safety and
electrical safety legislation are negligible and will be met from within
existing departmental budgets.
WorkCover Queensland has estimated the costs of the Workers'
Compensation and Rehabilitation Act 2003 amendments at approximately
$1.348 million per annum, which can be met from within WorkCover's
existing premium cost structure.
Consistency with Fundamental Legislative Principles
This Bill raises no fundamental legislative principle issues. The Bill has
been drafted with regard to the fundamental legislative principles
prescribed by the Legislative Standards Act 1992 and complies with these
principles.
Consultation
Workplace Health and Safety and Electrical Safety
The Workplace Health and Safety Board and the Electrical Safety Board
endorsed the amendments. In addition, the Department of Employment
and Industrial Relations (DEIR) has consulted with the following
stakeholders:
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
Unions
Queensland Council of Unions (and their affiliates)
Australian Workers Union
Construction, Forestry, Mining and Energy Union
Builders Labourers Federation
Employer Associations and employers:
Australian Industry Group
Commerce Queensland
Queensland Masters Builders Association
Housing Industry Association
Local Government Association of Queensland
Civil Contractors Federation
National Retailers Association
Queensland Farmers Federation
Workers' Compensation
Queensland Asbestos Related Disease Support Society
Queensland Council of Unions
Construction, Forestry, Mining and Energy Union
Australian Workers Union
Association of Self-Insured Employers of Queensland
Australian Industry Group
Commerce Queensland
WorkCover Queensland
Q-COMP
DEIR also consulted with all government departments.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
Notes on Provisions
Part 1 Preliminary
1 Short title
Clause 1 states the short title of the Act.
2 Commencement
Clause 2 states that Part 4 is taken to have commenced on 28 October 2008.
Part 2 (other than sections relating to provisional improvement notices) and
Part 3 commence on 1 January 2009. The sections relating to provisional
improvement notices commence on a day to be fixed by proclamation.
Part 2 Amendment of Workplace Health
and Safety Act 1995
3 Act amendment in pt 2
Clause 3 provides that the Workplace Health and Safety Act 1995 is
amended in this Part.
4, 5 and 6 Amendment of s7, s 22 and 42C
Clauses 4, 5 and 6 replaces the term `at a workplace' with the more general
term `at a relevant place' in sections 7, 22 and 42C. This amendment
clarifies that the Department of Employment and Industrial Relations has
jurisdiction over `specified high risk plant' (e.g. lifts, elevators, boilers etc)
no matter where it is situated.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
7 Amendment of s42D (Meaning of workplace health and safety
undertaking)
Clause 6 amends section 42D to provide for the application of undertakings
to public sector units. Public sector unit is defined in the Acts Interpretation
Act 1954.
8 Amendment of s 67 (Who is a workplace health and safety
representative)
Clause 8 amends section 67 by inserting a note referencing section 81A
which provides the definition of a qualified workplace health and safety
representative.
9 Amendment of s 81 (Entitlements of workplace health and
safety representatives)
Clause 9 amends section 81 to provide qualified workplace health and
safety representatives with the power to issue provisional improvement
notices in their area of representation.
10 Insertion of new pt7, div 3, sdivs 4A and 4B
Subdivision 4A Provisional improvement notices
Clause 10 inserts new subdivisions 4A and 4B into division 3 of part 7 of
the Act to allow workplace health and safety representatives to issue
provisional improvement notices in their area of representation.
81A Who is a qulified workplace health and safety
representative?
New section 81A provides the definition of a qualified workplace health
and safety representative.
81B Provisional improvement notices
New section 81B allows a workplace health and safety representative to
issue a provisional improvement notice (PIN) in their area of representation
if they reasonably believe that a person is contravening provisions of the
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
Act or regulation or has contravened such a provision in circumstances that
make it likely to be repeated or continued.
81C Consultation required before issue of provisional
improvement notice
New section 81C states that the workplace health and safety representative
must consult with the person about remedying the contravention or likely
contravention prior to issuing a provisional improvement notice.
81D Contents of provisional improvement notice
New section 81D outlines what a provisional improvement notice (PIN)
must contain. The PIN must have a remedy date of at least 8 days after the
day the notice is given.
81E Provisional improvement notice may state measures to
remedy contravention
New section 81E provides that a provisional improvement notices (PIN)
may state measures to be taken to remedy the contravention or likely
contravention. A workplace health and safety representative may provide
measures in the PIN about fixing the health and safety issue, but is not
required to do so.
81F What person given provisional improvement notice must
do
New section 81F outlines the notice requirements for a person who is
issued a provisional improvement notice (PIN). If a person is a worker they
must bring the notice to the attention of the relevant person. If the person
receiving the PIN is not a worker (e.g. employer or principal contractor)
they must bring the PIN to the attention of all persons whose work may be
affected by the notice. The clause also specifies requirements for display of
the PIN.
81G Compliance with provisional improvement notice
New section 81G makes it an offence for a person not to comply with a
provisional improvement notice where an inspector has not been required
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
to attend the workplace. The offence carries a maximum penalty of 40
penalty units.
81H Request for inspector to enquire into giving of provisional
improvement notice
New section 81I provides for a review of provisional improvement notices
(PIN) by an inspector. Within 7 days of the notice being issued, the person
to whom a PIN is issued can request the chief executive to arrange an
inspector to attend the workplace to enquire into the circumstances relating
to the giving of the notice.
When the request has been made the PIN is effectively suspended until the
inspector's enquiry is complete. An inspector must attend the workplace as
soon as practicable after the request is made.
A qualified workplace health and safety representative may also ask the
chief executive to arrange for an inspector to attend the workplace to
enquire into the circumstances relating to the giving of the notice. The
representative may request this if the recipient of the PIN has not complied
within the time stated in the notice.
81I Attendance of inspector in relation to provisional
improvement notice
New section 81I provides that as soon as practicable, after the request is
made, the chief executive must arrange for an inspector to attend the
workplace and enquire into the circumstances relating to the giving of the
provisional improvement notice (PIN). Following the inspector's
investigation, the inspector will either affirm the PIN (with or without
modifications) or cancel the PIN by giving written notice. This notice must
be given to both the workplace health and safety representative who issued
it and the person to whom it was issued. The decision made by the
inspector is a reviewable decision under Part 11 of the Act. Where a PIN is
affirmed, the inspector will also specify a new timeframe to comply with
the notice.
81J Service of provisional improvement notice
New section 81J provides for the service of a provisional improvement
notice (PIN). The PIN can be delivered in person or left for the person at
the workplace to which the notice relates. In most circumstances the notice
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
will be given to the person in control of the workplace or the work to which
the notice relates.
81K Formal irregularities or defects in provisional improvement
notice
New section 81K outlines that a formal defect or irregularity in a
provisional improvement notice (PIN) will not automatically make it
invalid. However, if the defect or irregularity, when viewed objectively,
may mislead the person to whom it is issued or cause or is likely to cause
substantial injustices, then the notice will be invalid. For example a failure
to use the correct name of the person to which the notice is given, if the
notice clearly identifies the person, will not make the PIN invalid.
81L Qualified workplace health and safety representative may
cancel provisional improvement notice at any time
New section 81L allows a workplace health and safety representative to
cancel a provisional improvement notice (PIN) at any time. Written notice
must be given to the relevant person of the cancellation. This provision
applies in circumstances where a PIN may have been issued in error.
81M Proceedings for offence not affected by provisional
improvement notice
New section 81M provides that proceedings for an offence against the Act
are not affected by the fact that a provisional improvement notice has been
issued for a matter.
Subdivision 4B Suspension or cancellation of workplace health
and safety representative's entitlement to give provisional
improvement notice
This new subdivision outlines the circumstance in which the entitlement of
a workplace health and safety representative to issue a provisional
improvement notice (PIN) can be suspended or cancelled.
81N Application to suspend or cancel
The new section 81N provides that the chief executive or the relevant
person may apply to the Industrial Commission to suspend or cancel the
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
workplace health and safety representative's entitlement to issue a PIN, if
they reasonably believe that the representative has issued it unreasonably.
81O Decision on application may be given on the papers or at a
hearing
The new section 81O provides that the Industrial Commission has the
discretion to decide whether to take on an application under section 81N on
the papers filed.
81P Application decided on the papers
The new section 81P provides how an application must be decided on the
papers.
81Q Applications decided at a hearing
The new section 81Q provides how an application must be decided at a
hearing. A decision of the Industrial Commission under this section or
section 81P may be appealed under Part 11 of the Industrial Relations Act
1999.
11 Amendment of s 85 (Ceasing to be a workplace health and
safety representative)
Clause 11 amends section 85 to provide that a workers stops being a
qualified workplace health and safety representative (entitlement to issue
provisional improvement notices) when they stop being a workplace health
and safety representative.
12 Amendment of s 90Q (Applications decided on the papers)
Clause 12 amends section 90Q(2)(a) to replace the terms `suspending or
cancelling' with the terms `to suspend or cancel'.
13 Amendment of s 97 (Employer and principal contractor to
help workplace health and safety officer etc)
Clause 13 amends section 97(1)(a) to replace the term `at a workplace'
with `at a relevant place'. This is for the sake of completeness of the
matters covered by the Act.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
14 Amendment of s 104 (Entry to places)
Clause 14 amends section 104(1)(f) to include the term `a prescribed
activity, or work to remove bonded asbestos containing material, is being
performed at the place by a person who holds a certificate to perform the
activity or work'. The amendment is required as a result of removing
bonded asbestos containing material from the definition of a `prescribed
activity' and thus the requirement to appoint a principal contractor and
prepare a construction safety plan. The removal of bonded asbestos
containing materials will still need to be undertaken in accordance with the
National Code of Practice for the Safe Removal of Asbestos 2nd Edition
[NOHSC: 2002 (2005)] and an asbestos management plan prepared.
15 Insertion of new pt 9, div 3A hdg and new s 118A
Clause 15 inserts a new Part 9, Division 3A to provide for orders to secure
compliance with notices given by an inspector.
118A Definition for div 3A
New section 118A inserts a definition of `notice' for Division 3A. This is
to include a notice given by an inspector in relation to a provisional
improvement notice.
16 Amendment of s 119 (Order to secure compliance with
notices)
Clause 16 amends section 119 to provide that the chief executive may
apply to an industrial magistrate for an order directing a person to comply
with a notice. This section is amended to take into account the introduction
of a notice given by an inspector in relation to a provisional improvement
notice.
17 Amendment of s 122 (Power to require production of certain
documents)
Clause 17 amends section 122 by removing subsection (8) which was
inserted by section 61 of the Workers' Compensation and Rehabilitation
and Other Acts Amendment Act 2007 which will automatically commence
on 10 November 2008. This amendment returns section 122 to its pre-10
November 2008 form and ensures inspectors can lawfully require a person
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
to present their licence to perform high risk work or earthmoving or
particular crane certificate when requested.
In addition, the clause replaces the term `workplace' in section 122 (1)(b)
with the more general term `relevant place'. This is for the sake of
completeness of the matters covered by the Act.
18 Amendment of s 147A (Definitions for pt 11)
Clause 18 amends section 147A which provides the definitions for Part 11.
The definition of original decision is amended to allow an order or decision
of the Industrial Commission under section 81P or 81Q.
19 Amendment of s 165 (Limitation on time for starting
proceedings)
Clause 19 amends section 165 to provide that a proceeding for an offence
against this Act must start, if the offence involves a breach of an obligation
causing death and the death is investigated by a coroner under the Coroners
Act 2003, within two years after the coroner makes a finding in relation to
the death.
20 Amendment of s 166 (Responsibility for acts or omissions of
representatives)
Clause 20 amends s 166 to extend the definition of representative to the
public sector. This includes all relevant persons such as an officer or
employee.
21 Insertion of new s 168B
New section 168B provides that at the sentencing of an offender, the
prosecutor should inform the sentencing court of appropriate details of the
harm caused to the victim by the crime and that the prosecutor may have
regard to the victim's wishes. However, the presentation of the harm
caused to a victim by the defendant's failure to comply with the Act is not
mandatory. The prosecutor should ensure the sentencing court has regard to
the Penalties and Sentences Act 1992. The section also provides definitions
of the terms `harm' and `victim'.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
22 Insertion of new pt 12 div 3
Clause 22 inserts a new Part 12, Division 3 to provide for proceedings
against government bodies.
170 Definitions for div 3
New section 170 provides the definitions for government body, responsible
entity and successor in law.
170A Government body may be prosecuted
New section 170A expressly provides that a government body may be
prosecuted for an offence against the Act. Where a prosecution is taken, the
proceeding must be taken against the responsible entity as defined in the
new section 170B.
170B Responsible entity for a proceeding against the State
New section 170B outlines who is a responsible entity for a proceeding
against the State. In this first instance it is:
· the public sector unit the acts or omissions of which are alleged to
constitute the offence; or otherwise
· the successor in law of the public sector unit; or
· the entity declared by the court - if there is no clear successor.
The section provides that for proceedings against the State, the responsible
entity is a separate legal entity and is to be stated in the charge for the
offence. The responsible entity also has the procedural rights and
obligations of the State. The section also provides that the prosecutor may
substitute another responsible entity for the entity in the proceeding on the
ground that the entity may have ceased to exist.
The chief executive of the responsible entity may act on behalf of the
responsible entity for the purpose of the proceeding. The chief executive
can authorise a person to act for the responsible entity on their behalf. In
addition, the section outlines the process for the service of documents
relating to the proceedings on the responsible entity.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
170C Penalties in proceedings against government body
New section 170C provides that body corporate penalties apply to
government bodies if convicted of an offence under this Act. The section
also clarifies that an infringement notice may also be served on a
government body.
170D Notices may be given to a government body
New section 170D clarifies for the sake of completeness that a government
body may also be served with other notices under the Act.
23 Amendment of s176 (Impersonating inspectors and others)
Clause 23 amends section 176 to include a qualified health and safety
representatives.
24 Amendment of s 183 (Protection from liability - officials)
Clause 24 amends section 183 to provide a example of an action done is
giving information or advice.
25 Amendment of s 185A (Powers of chief executive to require
production of particular documents)
Clause 25 amends section 185A(1)(b) by replacing the term `at a
workplace' with the term `at a relevant place'. This is for the sake of
completeness of the matters covered by the Act.
26 Insertion of new pt 17 div 5
Clause 26 inserts a new Part 17, Division 5 to provide for transitional
provisions for the Workplace Health and Safety and Other Legislation
Amendment Bill 2008.
195 Applications to Supreme Court
New section 195 provides that section 119 (Order to secure compliance
with notices) continues to apply to an application to the Supreme Court
made before commencement.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
27 Amendment of sch 1 (Prescribed activities)
Clause 27 amends Schedule 1(2) of the Act to provide that work to remove
friable asbestos containing material is a prescribed activity. The clause
removes bonded asbestos containing material from the definition of a
`prescribed activity' and thus the requirement to appoint a principal
contractor and prepare a construction safety plan. The removal of bonded
asbestos containing materials will still need to be undertaken in accordance
with the National Code of Practice for the Safe Removal of Asbestos 2nd
Edition [NOHSC: 2002 (2005)] and an asbestos management plan
prepared. This amendment removes unnecessary additional regulation for
the removal of small quantities of bonded asbestos containing materials
and brings the requirements in Queensland in line with other States and
Territories.
28 Amendment of sch 3 (Dictionary)
Clause 28 omits, amends and inserts various definitions. In particular, the
clause:
· removes asbestos removal work, relevant place and unbonded
asbestos containing material;
· inserts new definitions of provisional improvement notice; qualified
workplace health and safety representative, relevant person, relevant
place; and
· amends the definition of friable asbestos containing material by
removing reference to `unbonded'.
Part 3 Amendment of Electrical Safety
Act 2002
29 Act amendment in pt 3
Clause 29 provides that this part amends the Electrical Safety Act 2002.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
30 Amendment of s 3 (Act binds all persons)
Clause 30 deletes section 3(3) of the Act which provides that the Act binds
all persons.
31 Amendment of s 49 (Meaning of electrical safety
undertaking)
Clauses 31 amends section 49 to provide for the application of
undertakings to public sector units. Public sector unit is defined in the Acts
Interpretation Act 1954.
32 Amendment of s 156 (Order to secure compliance with
notices)
Clauses 32 amends section 156(2) to provide that the chief executive may
apply to an industrial magistrate for an order directing a person to comply
with a notice. This section is amended to take into account the introduction
of a notice given by an inspector in relation to a provisional improvement
notice.
33 Amendment of s 187 (Limitation on time for starting
proceedings)
Clause 33 amends section 187 to provide that a proceeding for an offence
against this Act must start, if the offence involves a breach of an obligation
causing death and the death is investigated by a coroner under the Coroners
Act 2003, within two years after the coroner makes a finding in relation to
the death.
34 Amendment of s 188 (Responsibility for acts or omissions of
representative)
Clause 34 amends s 188(4) to extend the definition of representative to the
public sector. This includes all relevant persons such as an officer or
employee.
35 Insertion of new s 189A
Clause 35 inserts a new section 189A to provide that at the sentencing of an
offender, the prosecutor should inform the sentencing court of appropriate
details of the harm caused to the victim by the crime and that the
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
prosecutor may have regard to the victim's wishes. However, the
presentation of the harm caused to a victim by the defendant's failure to
comply with the Act is not mandatory. The prosecutor should ensure the
sentencing court has regard to the Penalties and Sentences Act 1992. The
clause also provides definitions of the terms `harm' and `victim'.
36 Insertion of new pt 13 div 2A
Clause 36 inserts a new Part 13, Division 2A to provide for proceedings
against government bodies.
192A Definitions for div 3
The new section 192A provides the definitions for government body,
responsible entity and successor in law.
192B Government body may be prosecuted
New section 192B expressly provides that a government body may be
prosecuted for an offence against the Act. Where a prosecution is taken, the
proceeding must be taken against the responsible entity as defined in the
new section 170B.
192C Responsible entity for a proceeding against the State
New section 192C outlines who is a responsible entity for a proceeding
against the State. In this first instance it is:
· the public sector unit the acts or omissions of which are alleged to
constitute the offence; or otherwise
· the successor in law of the public sector unit; or
· the entity declared by the court - if there is no clear successor.
The section provides that for proceedings against the State, the responsible
entity is a separate legal entity and is to be stated in the charge for the
offence. The responsible entity also has the procedural rights and
obligations of the State. The section also provides that the prosecutor may
substitute another responsible entity for the entity in the proceeding on the
ground that the entity may have ceased to exist.
The chief executive of the responsible entity may act on behalf of the
responsible entity for the purpose of the proceeding. The chief executive
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
can authorise a person to act for the responsible entity on their behalf. In
addition, the section outlines the process for the service of documents
relating to the proceedings on the responsible entity.
192D Penalties in proceedings against government body
New section 192D provides that body corporate penalties apply to
government bodies if convicted of an offence under this Act. The section
also clarifies that an infringement notice may also be served on a
government body.
192E Notices may be given to a government body
New section 192E clarifies for the sake of completeness that a government
body may also be served with other notices under the Act.
37 Insertion of new pt 17
Clause 37 inserts a new Part 17, to provide for transitional provisions for
the Workplace Health and Safety and Other Legislation Amendment Bill
2008.
243 Applications to Supreme Court
New section 243 provides that section 156 (Order to secure compliance
with notices) continues to apply to an application to the Supreme Court
made before commencement.
Part 4 Amendment of Workers'
Compensation and
Rehabilitation Act 2003
38 Act amended in pt 4
Clause 38 provides that this part amends the Workers' Compensation and
Rehabilitation Act 2003.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
39 Amendment of s 128B (Entitlements of worker with terminal
condition)
Clause 39 amends section 128B to specify that the payment under
subsection 2(b) is for care, including gratuitous care.
40 Insertion of new ss 128D and 128E
Clause 40 inserts a new section 128D to introduce a new benefit for
dependants of terminal, latent onset disease sufferers. The new entitlements
apply to all dependants collectively; dependants are not individually
entitled to the amounts specified. The benefit consists of:
(a) 15% of the maximum death benefit under section 200(2)(a); and
(b) an amount for the reasonable expenses of the worker's funeral of 2%
of the maximum death benefit.
This benefit applies if a worker had already received a payment of lump
sum compensation or damages for the latent onset injury that did not
include a payment on account of his or her dependants. If the worker did
not receive a lump sum payment or damages prior to death, normal death
benefits under Chapter 3, Part 11 (Compensation on worker's death) apply.
The clause also specifies that payments for dependants under section 128D
may be made to the worker at the time a payment is made under section
128B, to reduce financial hardship on families. The meaning of dependant
is defined for this section to take into account the new ability to pay the
dependants compensation while the worker is still alive. The benefits under
this section are the total amount of benefits payable to the dependants. No
further compensation is available under the Act.
The clause also inserts a new section 128E which specifies compensation is
only payable to a dependent after a worker's death, if the worker dies of the
latent onset injury and a payment has not been made for dependants under
section 128D. The compensation is paid to the worker's legal personal
representative or, if no legal personal representative, to the worker's
dependants. If compensation is paid to the worker's legal representative,
that person must pay or apply the compensation for the benefit of the
worker's dependants.
41 Amendment of s 194 (Application and object of pt 11)
Clause 41 amends section 194 to specify that Chapter 3, Part 11
(Compensation on worker's death) does not apply if the worker had
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
received a payment of lump sum compensation or damages for the latent
onset injury under this Act, another Act or a law of another State or the
Commonwealth.
42 Insertion of new ch 24
Clause 42 inserts a new transitional and declaratory provision to specify
that the amendments apply:
· for workers - to applications made on or after 28 October 2008;
and
· for dependants - to applications made where the death of a
worker from the latent onset injury occurs on or after 28 October
2008 and the worker has received compensation under section
128B.
The clause also specifies that the amendment of the Workers'
Compensation and Rehabilitation Regulation 2003 by the Workplace
Health and Safety and Other Legislation Amendment Bill 2008 does not
affect the power of the Governor in Council to further amend the
Regulation or to repeal it.
Part 5 Amendment of Workers'
Compensation and
Rehabilitation Regulation 2003
43 Regulation amended in pt 5
Clause 43 provides that this part amends the Workers' Compensation and
Rehabilitation Regulation 2003. While it is not customary to amend a
regulation by an Act of Parliament, the prospective application of the
amendments from 28 October 2008 requires a regulation amendment for
the Act provisions to operate correctly. Although regulation amendments
have previously been delegated by the Parliament to the Governor in
Council, given the urgency in this instance the Parliament is considered the
appropriate body to expedite the correct operation of the provisions.
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Workplace Health and Safety and Other Legislation Amendment Bill 2008
44 Amendment of s 85 (Application for compensation)
Clause 44 amends section 85 of the Workers' Compensation and
Rehabilitation Regulation 2003 to specify that a claim for compensation, in
relation to dependants of a worker with a latent onset injury that is a
terminal condition, must be supported by proof of the relationship to the
worker of persons claiming to be the worker's dependants.
© State of Queensland 2008
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