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Independent review recommends 34 changes to model WHS laws

Tuesday, 5 March, 2019 - 13:15
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National News

An independent review of national Work Health and Safety Laws has recommended 34 changes to provide clarity and to drive greater consistency in the application and enforcement of the laws across jurisdictions.

The review, which was conducted by former executive director of SafeWork SA Marie Boland, found that while the laws are largely operating as intended, there is scope for improvement.

In 2018 Safe Work Australia appointed Boland to conduct a review of the model WHS laws in consultation with key stakeholders including regulators, businesses and the general public.

Boland also said that the three-tier legal framework is widely supported, and there is a view that it is sufficiently flexible to accommodate the evolving nature of work and changing work relationships.

Key recommendations relate to the model WHS Regulations and Codes of Practice, including making regulations on psychological health, higher penalties and other measures to strengthen the compliance and enforcement framework and enhance deterrence, and clarifying requirements for meaningful WHS consultation, representation and participation to improve safety outcomes.

In the report, Boland said her recommendations reflect the need to revisit how the model WHS Regulations support the object of the model WHS Act (particularly in relation to the priority industries identified in the Australian Work Health and Safety Strategy 2012–22) and to continuously assess new ways of working, new industries and new technologies to ensure there are no gaps in the application of the model WHS law framework.

“Support for the harmonisation objective remains strong,” she said in the report.

“However, consistency of application and enforcement of the laws was a recurring theme throughout the consultation process.”

The enforcement of the model WHS laws across enacting jurisdictions is guided by the National Compliance and Enforcement Policy (NCEP), and Boland recommended that the NCEP be revised to provide decision-making frameworks relevant to the key functions and powers of the regulator and inspectors under the model WHS laws.

She also observed that complexity was a word which came up again and again throughout the review, particularly in small business meetings.

“The basic objective of the model WHS laws is a simple one – to secure the safety of workers,” she said.

“Many of my recommendations are intended to assist in providing clarity to duty holders and to help them answer the question: ‘what do I need to do?’.

“This question is particularly relevant to situations where there are multiple duty holders, and my recommendations include providing clear, practical guidance to persons conducting a business or undertaking (PCBUs) who hold concurrent duties under the model WHS laws.”

Consultation with workers is a requirement of the model WHS framework, and where the health and safety representative (HSR) framework is embraced Boland said it is working well.

“I have made recommendations to support the consultation and representation objects of the model WHS laws, including streamlining the HSR election process for small business and providing HSRs choice in their training provider,” she said.

With regards to workplace injuries and deaths, Boland said it is critical that the community is confident that the model WHS laws enable justice to be administered fairly and appropriately.

“I have made a series of recommendations dealing with penalty levels, sentencing guidelines, prohibiting access to insurance for payment of fines and the introduction of a new industrial manslaughter offence,” said Boland, who explained that the new offence is required to address increasing community concerns that there should be a separate industrial manslaughter offence where there is a gross deviation from a reasonable standard of care that leads to a workplace death.

“It is also required to address the limitations of the criminal law when dealing with breaches of WHS duties,” she said.

“I am also recommending amendments to include that a duty holder commits a Category 1 offence if the duty holder is grossly negligent in exposing an individual to a risk of serious harm or death.”

Boland added that it will be important to review the model WHS laws again when the key new concepts contained in the model WHS Act have further evolved and as more case law emerges over the coming years. 

The review report is with WHS ministers for consideration and their response to the recommendations is expected later in the year.

Further reading

Kym Bills (the incoming Chair of the College Of Fellows) and David Clarke (SIA CEO) have put together a review of what they see as issues of most interest to the health and safety profession which can be found here.