Further WHS changes afoot

On 20 May 2021, the Commonwealth, State and Territory Minsters responsible for work health and safety met to discuss a range of important issues impacting the work health and safety of Australians.

The discussion centred around review of the content and operation of the model WHS laws which was completed by Ms Marie Boland in late 2018 (Boland review).

The following key developments were identified by the Ministers in a communique released at the conclusion of the meeting.

Industrial manslaughter will not be incorporated into the model WHS laws

One of the key recommendations of the Boland review of the model WHS laws was the introduction of industrial manslaughter offences.

That recommendation fell one vote short of receiving the endorsement of Australian Ministers (with the jurisdictions that have enacted industrial manslaughter offences – being Victoria, the ACT, Queensland, Western Australia and the Northern Territory – voting in favour of the recommendation).

Category 1 offences to be expanded to cover gross negligence

The meeting of Ministers placed emphasis on a need to improve prosecution rates for Category 1 offences under the model WHS laws.

Category 1 offences are the most serious offences against the model WHS laws because they involve conduct that exposes a person to whom a duty is owed to a risk of death or serious injury or illness. Category 1 offences attract the most severe maximum penalties.

At present, to successfully prosecute a Category 1 offence (other than in NSW), a prosecutor must prove that the accused was reckless as to the risk of death or serious injury or illness.  Proving recklessness requires the prosecutor to show that a known or obvious risk was consciously disregarded by a defendant.

By contrast, proving criminal negligence does not usually require the prosecutor to establish risks were consciously disregarded. Instead, it requires proof of “such a great falling short of the standard of care which a reasonable [person] would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment”.

The Ministers unanimously agreed to introduce gross negligence as a fault element for Category 1 offences under the model WHS Act.

In NSW, gross negligence is sufficient to give rise to a Category 1 offence. However, that is not the case in the Northern Territory, Queensland, South Australia, the Australian Capital Territory, Tasmania or Western Australia. Accordingly, assuming that the agreement reached by the Ministers is implemented by Parliament in each of those jurisdictions, the threshold for being found guilty of the most serious category of WHS offences will be lowered significantly.

Psychological injury and amendments to model WHS regulations

A majority of Ministers agreed to amend the model WHS Regulations to deal with psychological injury.

Under the current model WHS Act, persons conducting a business or undertaking have a duty to protect workers from psychological hazards as well as physical hazards. This is due to ‘psychological health’ being including in the definition of ‘health’.

This announcement closely follows the Victorian Government announcing that it is developing regulations to provide “clearer guidance” to employers on their obligations relating to psychological risks and hazards.

All employers will need to monitor developments in this space closely to ensure that their safety management systems factor in, and promote compliance with, any new requirements introduced into WHS regulations.

Gig economy

Participants in the food delivery industry are already the subject of focus by safety regulators in certain Australian jurisdictions.

The Ministers’ communique notes that Safe Work Australia is developing national work health and safety guidance for the food delivery industry. Further, the Ministers agreed to refer work on:

  • promoting and strengthening education to Safe Work Australia; and
  • compliance and enforcement initiatives in relation to food delivery platforms and riders to the heads of workplace safety authorities for consideration.

Sexual harassment in the workplace

The Ministers have noted the Commonwealth Government’s response to the [email protected]: National Inquiry into Sexual Harassment in Australian Workplaces conducted by the Australian Human Rights Commission.

State and Territory Ministers provided an update on their current or planned work and initiatives directed at addressing sexual harassment in their respective jurisdictions, and are required to formally respond to the Commonwealth by the end of June 2021.

Next steps

The Ministers agreed to reconvene before the end of the year to receive progress reports from each jurisdiction and Safe Work Australia on the implementation of the agreed recommendations.

 

Liam Fraser
Partner
+ 61 7 3071 3113
liam.fra[email protected]
Dominic Fleeton
Partner
+ 61 3 9958 9616
[email protected]
John Makris
Partner
+ 61 2 9169 8407
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Duncan Fletcher
Partner
+ 61 8 6381 7050
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Marcus Topp
Lawyer
+ 61 3 9958 9610
[email protected]