“Great win in the Supreme Court! No more naming and shaming for health and safety offenders in Queensland”
The Supreme Court decision is an appalling situation over which OHS professionals and regulators should be outraged.
Austin and other HSF lawyers authored a longer article on the case and totally miss the point of why OHS offenders should be named. Shaming of offenders is a different matter.
The article explains how a decision under the Penalties and Sentences Act 1992 (Qld) may stop the OHS regulator in Queensland, Work Health and Safety Queensland, from listing the names of offenders on its website.
“Herbert Smith Freehills acted for the Applicant arguing that the Prosecution List website publication amounted to a permanent record and was contrary to the Act. Conversely, Workplace Health and Safety Queensland argued that the publication was intended to be an information sharing process to raise awareness of work health and safety laws which was temporary in nature being intended to appear for only five years.”
“There are many individuals and corporations, convicted in Queensland of a work health and safety offence with an order that ‘no conviction be recorded’. Each of these parties can now require that the regulator remove their identifying details from any publication.”
A major purpose of OHS regulators is to raise awareness of the consequences of breaching OHS law with the intention that this knowledge may change the behaviour of employers and workers to workplace safety. The public is already at a disadvantage by decisions in the Magistrate’s Courts not being publicly available. The Queensland Supreme Court decision is a further reduction in the “state of knowledge” of the consequences of non-compliance.
State of Knowledge is a crucial element in determining what is “reasonably practicable” in controlling hazards at work. For instance, WorkSafe Victoria writes that
“Knowledge about the hazard or risk, or any ways of eliminating or reducing the hazard or risk, must be determined objectively by reference to what the person concerned actually knows and what a reasonable person in the duty-holder’s position who is required to comply with the same duty should know.
What a person knows or reasonably ought to know is commonly referred to as the state of knowledge.” (page 3)
In a recently released report on safety leadership ACE Group wrote that knowledge of corporate OHS activity and failures is important in checking the backgrounds of contractors.
“Companies routinely pre-qualify subcontractors for experience, qualification and financial strength, but safety history and performance should also be a criteria. To evaluate subcontractor safety performance, companies should review their experience modification rates, their Bureau of Labor Statistics recordable and lost time incident rates, OSHA citation record and their overall safety culture and procedures. The pre-qualification of subcontractors should not stop with safety history and performance. It should include a review of the subcontractor’s own safety culture and how the company incorporates safety into its day-to-day operation.” (page 3)
The Queensland Supreme Court decision, over which Fiona Austin is so pleased, would limit access to important information on the OHS credentials of tenderers and contractors. This is likely to also limit the effectiveness of due diligence obligations in recent Work Health and Safety laws.
I can understand a lawyer being happy with a “win” for their client but Fiona Austin’s celebratory tweet implies a shortsighted understanding of that win’s potential impact on OHS laws, safety management, and contractual obligations; but tweets can often lead to misinterpretation.
Work Health and Safety Queensland must take the issue further through an appeal to a higher court as the Supreme Court decision is a major threat to the OHS state of knowledge and a major impediment to Australian businesses knowing the consequences of non-compliance with OHS laws.