The following article is an extract from our publication, the Kingston Reid Review: Your Guide to 2025. The full link to this publication can be found here.
2024 was an incredibly busy year for work health safety and regulatory practitioners, with a significant amount of legislative changes across various jurisdictions. With all these changes taking place, the regulatory landscape in Australia has only become more complex for duty-holders in 2025…
The year began with a raft of changes to the Work Health and Safety Act 2011 (Cth) (WHS Act) (introduced as part of the federal government’s Closing Loopholes legislative reforms), which significantly increased work health and safety (WHS) penalties under that Act and provided for future indexing, meaning an increase in potential jail time for workplace deaths of up to 25 years for individuals, or a fine of up to $18m for companies.
Other changes included the introduction of an offence of industrial manslaughter for workplace deaths and amendments to the criminal liability provisions for bodies corporate, the Commonwealth and public authorities, under which a corporation will be taken to have committed the offending conduct if it can be established that the board of directors, officers, employees or agents engaged in the conduct through express or implied authorisation. Even more significantly for PCBUs, the mental state or fault component of an offence (excluding negligence), will be attributed to the corporation in certain circumstances, including if a “corporate culture” exists which can be shown to have tolerated or led to the conduct constituting the offence. Following that development, provisions for a criminal industrial manslaughter offence were introduced over the course of 2024 in all remaining Australian jurisdictions, with the final piece of legislation coming into effect in Tasmania on 2 October 2024.
While there are a number of cases in jurisdictions that were early adopters of industrial manslaughter, we expect to see the safety regulators across Australia look closely at significant incidents, and whether reckless or gross negligence has been committed by organisations and their leaders. Whilst to date most of these prosecutions relate to smaller businesses, recently the former Port of Auckland CEO was convicted of exposing workers to serious risks in breach of his due diligence obligations. This prosecution represents the first of its kind for a large complex organisation.
Is this an indication of what the Australian regulators may be doing in 2025?
The national conversation on engineered stone and the need to address occupational dust diseases such as silicosis, asbestosis and mesothelioma led to a national prohibition on engineered stone in July 2024, following the establishment of the re-badged national Asbestos and Silica Safety and Eradication Agency, intended to better coordinate action at a national level.
In August 2024, Safe Work Australia announced the next step towards changes to the incident notification framework under the model WHS laws. The changes had been anticipated for some time and follow a review of the framework which found there was an opportunity to improve the coverage and operation of the provisions. A key focus of the changes is to expand the framework to capture psychosocial hazards and related psychological injuries and illnesses. In particular, changes include requiring notification of work-related suicides and attempted suicides of workers. The next step is for amendments to the model WHS laws to be drafted, which are expected to be released early this year.
With all these changes taking place, the regulatory landscape in Australia has only become more complex for duty-holders in 2025.
Psychosocial hazards
Psychosocial hazards have continued to keep our Safety and Regulatory team extremely busy and there is no sign of this slowing down in the new year, as Australian safety regulators are becoming increasingly active with issuing improvement notices and taking enforcement action. With each state regulator taking a slightly different approach to their compliance and enforcement activities, the landscape remains incredibly tricky for organisations with national or multi-state operations and will continue to remain so into the new year.
A key opportunity for organisations in 2025 will be to focus on embedding a collaborative, cross-functional approach to solving for this unique breed of WHS hazards and risks, which cannot necessarily be effectively addressed by elimination or engineering controls, given the propensity for individual workers to perceive and respond to situations differently. Perhaps one of the most important reflections to take away from 2024 is that psychosocial hazards effectively present a safety “problem” that requires a multi-disciplinary solution.
When it comes to psychosocial hazards, many of the answers are not yet abundantly clear, and will likely be questions for the courts to grapple with in 2025.
A key challenge for organisations in 2025 may be grappling with an even more fundamental question; what exactly is a psychosocial hazard? Further, does the applicable WHS legislative
framework require a systematic approach to managing psychosocial risks, or must a duty-holder address the idiosyncratic responses of individuals in the workplace?
Key areas where this challenge (and conversely, opportunity) commonly arise include interpersonal interactions, job/role design, organisation change management and performance management processes (to name just a few) and of course, the positive statutory duty to eliminate, as far as possible, sex-based discrimination and harassment, and sexual harassment, which exists under the federal Sex Discrimination Act 1991 (Cth).
More recently, Queensland introduced its own state-based positive duty, aimed at the elimination of all forms of unlawful harassment, including sexual harassment under the state’s Anti-Discrimination Act 1991 (Qld), in respect of which a sexual harassment prevention plan will be required to be implemented. It is possible that other states may follow suit.
In early 2024, we also wrote about the growing trend of enforcement activity in Australia within the WHS space in recent years. This increased enforcement activity can be linked to the Australian Work Health and Safety Strategy 2023-2033[1] published by Safe Work Australia, which represents the peak body’s national vision for WHS, agreed to by the various state WHS regulators, outlining targets that aim to achieve national WHS improvements and a goal of reduced worker fatalities, injuries and illnesses. One of the actions focuses on compliance and enforcement across WHS legislation and regulations.
Common risks that WHS regulators are targeting in 2024- 25 include falls from height, harms to workers in the health and social assistance sector with a focus on the disability sector, psychosocial risks, including the risk of sexual harassment, exposure to hazardous substances including silica, asbestos, hazardous chemicals and carcinogens, being injured by mobile plant, fixed machinery or vehicles in the workplace and vulnerable workers.
Having spent the last 12 months working closely with a number of clients across a range of industries, all grappling with the impact of increased regulatory scrutiny (predominantly in relation to psychosocial hazards), we have witnessed first-hand the impact of these activities, prompting the question – what happens when the regulator’s compliance and enforcement activities are the cause of, or are a significant contributing factor to, psychosocial risks and psychosocial hazards … essentially, how are the regulators regulating themselves?
Of course, regulators have a duty to ensure (so far as is reasonably practicable) that their undertakings do not expose anyone to psychosocial risks. Business and other duty-holders are well entitled to ask regulators how they are complying with the same laws that they
are administering and to which they are holding everyone else accountable.
Artificial Intelligence
Finally, perhaps one of the biggest shifts that took place throughout 2024 was the area of technological advancement – specifically, the rise of artificial intelligence (AI). At the end of November 2024, the Senate Select Committee on Adopting Artificial Intelligence tabled its final report[2], with the first of 13 recommendations being that the Government introduce new legislation to regulate “high-risk” use of AI. Importantly, it also recommended that any final definition of high-risk AI “clearly includes the use of AI that impacts on the rights of people at work, regardless of whether a principles-based or list-based approach to the definition is adopted”.
Another key recommendation was that the Government “extend and apply the existing work health and safety legislative framework to the workplace risks posed by the adoption of AI”.
Issues relating to the use of AI at work which the Committee flagged as requiring serious regulatory consideration include the loss of jobs, need for training and reskilling, and the impact of algorithmic management of work. However, the report noted that many of these issues are being explored in further detail by the House Standing Committee on Employment, Education and Training’s inquiry into the digital transformation of workplaces, so we can expect to hear more on this in the future.
[1] Australian Work Health and Safety Strategy 2023-2023, published by Safe Work Australia and available online here.
[2] Senate Select Committee on Adopting Artificial Intelligence. The final report is available online here.