Significant changes have occurred in work health and safety law over the last year. Amendments have been made and proposed to state and Commonwealth safety legislation meaning that jurisdictions are straying from what was originally a harmonised regulatory regime. As states and territories become less harmonised, compliance is becoming more complex for organisations with cross-jurisdictional operations. Victoria is now the only ‘non-harmonised’ jurisdiction in the country.
There have been some big changes, particularly in relation to psychosocial health and safety, penalties for breaches of health and safety legislation, prohibitions on contracts for indemnification from penalties, and increased regulatory activity.
Industrial manslaughter is now an offence in 5 state and territory jurisdictions. Two additional jurisdictions are considering or likely to introduce the offence shortly.
The team at Kingston Reid has prepared the following snapshot of recent changes and significant events across the country.
Model laws
The Model WHS Act forms the basis of the WHS Acts implemented across Australia except for Victoria.
The Model WHS Act was amended to significantly increase maximum penalties, to clarify the way in which Category 1 offences operate and to specifically set out that psychosocial risks must be eliminated or mitigated through the risk management clauses contained in the Model WHS Regulations.
Commonwealth
In mid-September, a wide range of amendments to the Commonwealth WHS Act, which applies mainly to the Federal Government and public authorities, were introduced, including prohibitions on insurance to cover WHS penalties and the addition of negligence as a fault element to the category 1 offence (which was historically concerned with recklessness).
The Federal Government’s “Closing Loopholes” Bill includes amendments to the Commonwealth WHS Act. The proposed amendments include the offence of industrial manslaughter, significant penalty increases for breaches and provisions relating to asbestos safety.
Queensland
The report on the review of Queensland’s WHS Act was published along with the Government’s response to the recommendations in the report in May 2023. Several changes to the Queensland WHS Act have been proposed. Significant changes include increased integration of health and safety representatives’ involvement in the performance of inspector and WHS permit holder functions, and increased recognition and participation of unions in safety matters.
A health and safety manager at the Queensland Museum was charged and pleaded guilty to a category 2 offence (an offence relating to a failure to comply with a duty resulting in exposure of a person to the risk of death or serious injury), following her failure to complete a risk assessment and implement controls relating to zoonotic diseases present at the Museum’s taxidermy department.
New South Wales
In October this year, the NSW Government formally committed to enacting a provision for the offence of industrial manslaughter.
This announcement followed NSW Work Health and Safety Minister Sophie Cotsis’ announcement of a 12-month “anytime, anywhere” inspector blitz campaign to combat the number of workplace fall incidents.
A bill was introduced which will triple the maximum penalty for category 1 breaches and increase all other WHS fines by 40%. The Bill also gives police powers under the WHS Act.
A PCBU charged with a category 1 offence was fined a record $2.025 million and a leading employee was also fined $101,250 in relation to the death of a worker in a woodchipper accident.
ACT
The ACT WHS Act was amended to include sexual assault incidents as notifiable incidents. Penalties will apply if PCBUs fails to notify WorkSafe ACT about an incident.
Codes of Practice dealing with psychosocial hazards and asbestos training were also made.
Victoria
WorkSafe Victoria has successfully prosecuted several breaches of the Occupational Health and Safety Act 2004 in respect of psychological risks. This was without any legislative change relating to the management of psychosocial risks.
Court Services Victoria was charged for failing to eliminate or mitigate health and safety risks for workers who were the subject of a toxic workplace culture, bullying and excessive workloads.
Tasmania
Following an inquest into the suicide death of four Tasmanian policemen, a coroner recommended that workers who are exposed to certain distressing incidents should automatically be referred to support providers for psychological assessment. The coroner also recommended mandatory six-monthly wellbeing screening for all serving officers.
South Australia
South Australia adopted the industrial manslaughter offence. Regulations regarding psychosocial risks were also introduced.
Western Australia
The WA Government launched its “Speak Up, Report It” campaign to address bullying, harassment and inequality in the key sectors of the Western Australian economy.
The Government also introduced a bill to adopt an ‘applied law approach’ to its mirror Rail Safety National Law legislation. If passed, the laws will automatically update in line with changes made to the Rail Safety National Law by the South Australian Parliament – the ‘author’ of the laws which other states and territories have agreed to adopt.
Northern Territory
The Northern Territory Supreme Court upheld the record breaking WHS fines of $960,000 imposed on a PCBU and $180,000 imposed on its director in relation to the death of a worker inside the strike zone of mobile plant.
The NT Government also made a new Code of Practice relating to tower cranes.