Australia: Changes to the WHS Model Laws – coming to a state and territory near you!

On 20 May 2021, the Ministers responsible for Work Health and Safety (WHS) from the Commonwealth and each state and territory met to consider a range of matters, including the response to the 2018 "Boland Review".

On 14 April 2022, a raft of amendments were made to the Model WHS Laws – but for reasons unknown, the updated model WHS Laws were not published until 6 June 2022.¹

The key changes to the model WHS Laws are discussed below.

The Model WHS Law Amendments

Although not enforceable at a Commonwealth, state or territory level, the model WHS Laws underpin the WHS Laws enacted by the parliaments of the Commonwealth and each state and territory (except for Victoria). Although largely similar, there are subtle differences between the different jurisdictions.

The Model WHS Act amendments include:

• Amending section 31 to introduce "gross negligence" as a second fault element (as an alternative to recklessness). Importantly, this confirms that a separate offence of industrial manslaughter (such as exists in Queensland, Victoria, Western Australia, the ACT and Tasmania) is not being recommended;
• Introducing new offences (sections 272A and 272B) that prohibit insurance and indemnity agreements for WHS penalties. Specifically, it is an offence to:
  • enter into a contract of insurance or other arrangement which purports to cover all or part of a liability for a monetary penalty under the WHS Act;
  • provide insurance or a grant of indemnity for all or part of a liability for a monetary penalty under the WHS Act; or
  • take the benefit of a contract of insurance, arrangement or grant of indemnity.

These changes are not proposed to be retrospective and, importantly, would not prohibit insurance for investigation costs and legal representation.

• Clarifying that the powers to compel information and documents under section 155 have extra-territorial application;
• Introducing a new section 271A which permits cross-border information sharing between regulators;
• Aligning the service of notices provisions under sections 155 (power to obtain information) and 171 (power to require production of documents and answer to questions upon entry) with those under section 209 (issue and giving a notice);
• Amending section 171 to enable inspectors, within 30 days of any inspector's entry to the workplace, to require the production of documents or answers to questions related to the purpose of entry within a specified period or require a person to attend before the inspector at a specified time to answer questions including via audio or audio-visual link.
• Amending section 52 to clarify that work groups are negotiated and agreed between a Person Conducting a Business or Undertaking (PCBU) and the workers who are proposed to form the work group or their representatives;
• Amending section 72 to clarify that a health and safety representative (HSR) is entitled to choose the course of training, and if the PCBU and HSR cannot reach agreement on time off for attendance or the reasonable costs of the training course that has been chosen by the HSR, either party may ask the WHS regulator to appoint an inspector to decide the matter;
• Amending section 117 to remove the 24-hour notice period for an entry permit holder; and
• Amending section 231 to improve Regulator accountability for investigations by extending timeframes in which a person can request that a regulator bring a prosecution in response to a category 1 or 2 offence, and if the investigation is ongoing, to provide progress updates every three months until it is complete.

The Model WHS Regulations amendments include:

• Introducing provisions defining psychosocial hazards (s55A) and psychosocial risks (s55B), and clarifying the control measures a PCBU must implement (55C-D);
• Introducing a note into regulation 15 to clarify that compliance with an Australian/New Zealand Standard are not mandatory unless stated otherwise; and
• Amending regulation 242 to enhance the recording of amusement device infringements and operator training.

Guidance material and Codes of Practice

SafeWork Australia has also made a number of amendments to, or developing new, materials and model Codes of Practice. Those include:

• Introducing a new fact sheet: WHS duties in a contractual chain;
• Amending the Model Code of Practice: Work health and safety consultation, cooperation and coordination to provide further examples of meaningful consultation and work group, and HSR arrangements in small businesses;
• Amending section 4.1 of the Worker Representation and Participation Guide to:
  • clarify how WHS issues should be dealt with when an inspector is reviewing a Provisional Improvement Notice;
  • provide examples of Health and Safety Committee consultations, agendas and minutes;
  • clarify the range of representatives a party to an issue resolution process may seek to involve, and how they might go about this; and
  • provide practical examples of how issue resolution process works.

Amendments yet to come?

A number of further proposed amendments are still in being considered and have not yet been implemented. The status of those proposed amendments can be found here. There were also a number of matters which the WHS Ministers agreed that it was not necessary to implement, including:

• Workplace rights of entry for union officials to provide assistance to a HSR;
• Clarifying the power of courts to issue declaratory orders in proceedings for discriminatory or coercive conduct; and
• Industrial manslaughter (which has, as noted earlier, been implemented in some jurisdictions). Whether this means that there will be any consideration given to removing the industrial manslaughter offence by jurisdictions that have already adopted it remains to be seen.

Summary

Although these changes do not create any legal obligations, they are likely to be adopted by the Commonwealth, states and territories in the coming months.

Some jurisdictions have already introduced some of the amendments. For example, NSW amended the Work Health and Safety Act 2011 (NSW) from 10 June 2020 to incorporate the additional fault element of "gross negligence" into section 31, as well as the prohibitions on insurance for WHS fines.

We will continue to keep you updated on further developments.

Footnote

¹https://www.safeworkaustralia.gov.au/doc/model-work-health-and-safety-act

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.