National review of Work Health & Safety laws - where to next?

A report from an independent review (Review) of the harmonised Work Health & Safety (WHS) laws in Australia has provided an overall tick of approval, along with giving a series of recommendations to assist in delivering clarity, consistency and effective operation and enforcement of the laws.

But what does the Review mean for businesses around Australia?

Background to the Review

The Review examined the operation and effectiveness of WHS laws in all jurisdictions in Australia. Those model laws were first developed by Safe Work Australia in 2009-2011 and were enacted between 2011 and 2012 in all jurisdictions except Victoria and Western Australia - the only two states that have not yet enacted the laws.

The submissions sought by the Review covered broad issues with the purpose of eliciting responses from businesses, employer and worker associations and regulators as to the effectiveness and practical operation of the laws. 

This is a critical point because at the time that the model WHS laws were implemented in 2011-2012 there was arguably uncertainty as to whether the new laws would necessarily improve safety in the workplace. It is one thing to have uniform laws. It is another thing for those uniform laws to operate effectively, particularly if they are not being applied uniformly.

What did the Review look at?

The types of questions asked by the Review were ones that your organisation may well have asked itself over the years, including:

• what currently works in the WHS laws and why? 
• will it continue to work as work practices and environments evolve? 
• what doesn’t work and why? 
• what could we do to make it work?

Perhaps not surprisingly, the author of the report, Marie Boland (former Executive Director, SafeWork South Australia), stated that:

Two key themes running through this Review process are confusion and complexity, mainly in relation to the model WHS Regulations and Codes. Businesses say that they find it difficult to navigate their way through the three tiers of the laws to select those aspects that specifically apply to them. Many small businesses in particular continually raised questions about how they should assess the risks and hazards in their workplace and what actions they should take to fulfil their WHS obligations.

Other key questions asked by the Review included:

• are any provisions in the model WHS laws especially difficult for organisations and workers in remote or regional areas to comply with?
• are there areas in the model WHS laws where the balance between flexibility in the model Codes of Practice and prescription of the model Regulations could be improved?
• do the model WHS laws make it clear that PCBUs must consult, co-operate and co-ordinate where they have shared duties or how consultation with workers and participation of workers in WHS matters should occur?

What were the recommendations?

In total there were 34 recommendations made by the Review ranging from broad recommendations on the role of Safe Work Australia, the interaction between State and Territory regulators and improving and consistency in prosecutorial discretion in enforcement, right down to very detailed recommendations about aligning dates for compliance with notices for production of documents, photo ID on construction industry White Cards and a suggested review of the high risk work licence classes for cranes.

Increase penalties and industrial manslaughter

Perhaps not surprisingly, the Review recommended an increase in maximum penalties, noting that in harmonised jurisdictions they have not increased with CPI or at all since 2011. Further, in accordance with the recent public outcry over serious workplace incidents, a recommendation was made that a separate offence for industrial manslaughter be included in the WHS Act. This was coupled with a suggestion that Category 1 offences (being the most serious) should be expanded to pick up ‘grossly negligent’ behaviour in addition to the current element of ‘recklessness’. Of these recommendations, probably only the increase of maximum fines will be initially adopted by all jurisdictions, as the political debate over separate industrial manslaughter laws continues to rage. 

Immediate practical recommendations

A number of the recommendations, if implemented, could have immediate practical consequences for organisations.

These include:

• incident notification: The Review noted that incident notification provisions are causing confusion, are ambiguous and do not capture all relevant incidents – in particular the developing area of psychosocial injury. It was recommended that a notification trigger should be included for psychological injuries and the test for ‘serious injury or incident’ or ‘dangerous incident’ (being the kind of injuries that should be notified) should be clarified within the WHS Act 
• removal of right to seek indemnity from insurer: Following the concerns of the Magistrate in the 2013 South Australian case of Hillman v Ferro Con (SA) Pty Ltd (in liquidation), the Review recommended that duty holders should be outlawed from getting insurance for a penalty in a WHS matter on the basis that it goes against public policy and the purpose of the legislation. Specifically, the Review stated that the WHS Act should be amended (similarly to the New Zealand Health and Safety Work Act 2015) to make it an offence to:
  • enter into a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under the model WHS Act
  • provide insurance or a grant of indemnity for liability for a monetary penalty under the model WHS Act
  • take the benefit of such insurance or such an indemnity
• changing the Health and Safety Representative (HSR) rules: particularly for small businesses of less than 15 workers, the Review recommended that there be only one work group for the business; allow the HSR to choose their training course; allow a union representative to assist an HSR on site even if they do not hold an entry permit under the Fair Work Act or other industrial law and, finally, that if an inspector cancels a PIN issued by an HSR, the inspector must deal with the underlying safety issue 
• right of entry without notice: The model WHS laws place limits on when entry may be sought by an union official and require written notice of any entry to be provided at least 24 hours, but not more than 14 days, before entering a workplace. This was an amendment made in 2014. The Review recommends the 24 hours’ notice requirement be removed which would allow an union official to immediately enter a worksite.

Practical guidance recommendations

And in terms of practical guidance, the Review recommended that:

• a new model Code should be developed that clearly demonstrates how the principles applying to duties operate, with particular reference to their interaction with the duty to consult, cooperate and coordinate activities between duty holders. In particular, for those industries like labour hire, outsourcing, franchising, gig economy and other modern working arrangements
• a Safe Work Method Statement (SWMS) template be developed for the construction industry with an intuitive, interactive tool that provides clear guidance on what information and actions are required to complete each section of the SWMS template
• the 16 Australian Standards referred to in the Regulations either be replaced, removed or incorporated in the WHS Laws but in any event to have certainty expressed in the WHS Laws that the Standards are not mandatory unless otherwise stated
• update the model Codes and guidance with examples of Health & Safety Committees’ constitutions, agendas and minutes and also provide practical examples of how the issue resolution process works.

Conclusion

The Review will take some time for governments and stakeholders to consider. At this stage, businesses should not expect to see any immediate changes to the law. 

However, the Review provides a clear and cogent framework for the implementation of a number of practical changes to the current laws - and businesses will be required to review their systems and processes. Particular areas will include incident notification, HSRs, right of entry and insurance arrangements. 

A full copy of the Review report can be found here. 

Author: Michael Selinger & Ushna Bashir

Contacts

Sydney
Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com

Melbourne
Benjamin Marshall, Partner
T: +61 3 9321 9864
E: ben.marshall@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. 

Published by:

Michael Selinger

Ushna Bashir

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