Recent amendments to Model WHS Act

The national Model Work Health and Safety (WHS) Laws were recently amended, with states and territories likely to implement changes in the near future.

Introduction

On 6 June 2022, the national Model WHS Laws were amended to consider a wide range of matters, including recommendations from Marie Boland’s independent review of the laws in 2018. Of Boland’s 34 recommendations for the harmonised laws, Safe Work Australia (SWA) has implemented 20 of them. Updates will be made to the model WHS Act, the Act’s explanatory memorandum, the model WHS Regulations, the Regulations’ explanatory statement and other relevant materials.

Several jurisdictions have already adopted some of the amendments. Other states are likely to implement changes in the coming months.

The changes

Amendments include:

• amending the Model WHS Act to introduce gross negligence as a fault element to the category 1 reckless conduct offence – this establishes that a separate offence of industrial manslaughter is not recommended by the Model Laws
• creating Regulation provisions identifying psychosocial hazards and psychosocial risks and providing control measures to manage them
• enhancing operator training amusement devices and record keeping for amusement device infringements
• clarifying that powers to compel information and documents for investigations into potential breaches have extra-territorial application
• permitting WHS regulators to share information between jurisdictions
• making it an offence to have insurance against WHS penalties
• removing the 24-hour notice period for an WHS entry permit holder (although the original provision was not adopted by any state or territory)
• aligning the procedures for supplying different types of notices under the WHS Act
• clarifying that work groups are negotiated and agreed between a Person Conducting a Business or Undertaking (PCBU) and the workers proposing to form the group
• clarifying that health and safety representatives (HSRs) are entitled to choose HSR courses of their choice
• enabling inspectors, within 30 days of an inspector’s entry to the workplace, to require the production of documents and answers to questions
• making it easier to hold WHS regulators accountable for the progress of their investigations
• introducing a note to clarify that compliance with Standards is not mandatory unless stated otherwise.

No implementation of industrial manslaughter

The WHS ministers involved in the review process at that time did not reach agreement on the implementation of an industrial manslaughter offence to the Model Laws. On that basis, no changes have been made to the Model Laws to that effect. However, with a change to the federal government and some state governments, the language from relevant ministers is changing.

The recently elected South Australian and Federal Labor governments have both declared their support for industrial manslaughter provisions, suggesting a different outcome at any future meetings. Industrial manslaughter provisions already exist in Queensland, the Australian Capital Territory, Victoria and the Northern Territory.

Guidance materials and Codes

SWA has also introduced new guidance materials and has made amendments to guidance materials and model Codes of Practice. Changes or additions of relevance include:

• amending the Worker Representation and Participation Guide to clarify WHS inspector matters, issue resolution processes and include practical examples relating to a range of issues
• creating a new fact sheet detailing WHS duties in a contractual chain
• changing the Model Code of Practice to include examples of ‘how meaningful consultation with workers can occur in a range of traditional and non-traditional settings’.

Key takeaways

Employers should be aware that the changes must be adopted by each jurisdictional government before they take effect. Therefore, they do not necessarily create any immediate legal obligations.

The changes, which create express provisions regarding the management of psychosocial hazards in the workplace, make it clear that employers will need to take active steps to manage psychosocial hazards in order to discharge their WHS duties. This is far more reaching than simply managing bullying and wellbeing within a workplace. It extends to considering the very nature of how work is designed and performed, in addition to managing workplace interactions and behaviours.

New South Wales and Western Australia have already elected to introduce a number of the Boland recommendations, including banning insurance against WHS penalties. Other states and territories are expected to implement changes in the near future.