The model WHS Act and Regulations and associated materials have been updated to reflect a number of recommendations of a review undertaken by Marie Boland, published in 2019 (Boland recommendations)
Some important changes have been made, including a prohibition against the insurance or indemnification of WHS penalties. While the changes to the model laws will not automatically flow into State and Territory WHS legislation, actions have been agreed by State and Territory WHS Ministers in this respect, so we expect to see changes reflecting this position shortly.
The changes to the model WHS laws do not include the Boland recommendation to include the offence of industrial manslaughter in the model WHS Act. This may change though in the future with the new Federal Government having expressed support for the inclusion of industrial manslaughter provisions in the model WHS Act. Notably though, an industrial manslaughter offence has already been implemented in Victoria and a number of harmonised WHS jurisdictions, including the Australian Capital Territory, Northern Territory, Queensland and Western Australia.
What are the key changes?
One of the key changes to the model WHS Act is a prohibition against entering into a contract of insurance or other arrangement under which the person or another person is purportedly covered for all or part of a liability for a monetary penalty under the model WHS Act or to provide insurance or a grant of indemnity for all or part of a liability for a monetary penalty under the model WHS Act. It is also an offence for someone to take the benefit of a contract of insurance, arrangement or grant of indemnity in this respect. Any insurance contract or other arrangement to the extent that it purports to cover a person for all or part of a liability for a monetary penalty is void.
This change was recommended on the basis that insurance policies which cover WHS fines have the potential to reduce compliance with laws and undermine community confidence. There is a limited defence available if a person can show they had a reasonable excuse for entering the contract or arrangement, providing the insurance or indemnity or taking the benefit of the contract, arrangement or indemnity. For example, if the person granted the indemnity under duress.
Another key change is the update to the model WHS Regulations with the regulation of psychosocial hazards in the workplace, reflecting the increased focus on mental health in the workplace in recent years. These changes to the model WHS Regulations were recommended by Ms Boland to provide duty holders with a clear legislative framework within which to manage psychological health issues. Under the revised model WHS Regulation, ‘psychosocial hazards’ and ‘psychosocial risk’ have been defined, with a requirement to implement control measures to eliminate so far as is reasonably practicable (or minimise if that is not reasonably practicable) psychosocial risks arising from psychosocial hazards. In implementing such measures, the model WHS Regulations specify particular matters which must be taken into account.
We note many harmonised WHS jurisdictions, as well as Victoria, have already published guidance regarding the management of psychosocial hazards in the workplace, with NSW and Western Australia having issued codes of practice in this respect, but do not include similar specific control measure requirements for psychosocial hazards in their WHS legislation yet.
Other changes include:
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Category 1 offence – inclusion of gross negligence
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The expansion of the existing category 1 offence of reckless conduct under the model WHS Act to include a person engaging in the conduct with gross negligence. The Explanatory Memorandum to the model WHS Act notes that unlike recklessness, the fault element of gross negligence does not require the prosecution to prove that the offender had a subjective awareness that their conduct posed a substantial risk of death or serious injury or illness and continued on with their conduct regardless, and that the inclusion of the alternative fault element of gross negligence is intended to lower the threshold for conviction for Category 1 offences. |
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Regulatory compliance and enforcement changes
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Changes have been made to address gaps in regulatory compliance and enforcement under the model WHS Act, such as changes allowing WHS regulators to obtain information, documents or evidence relevant to investigations of potential breaches of the model WHS laws outside their jurisdiction, and additional ways for regulators to use and share information (including with a corresponding regulator). |
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Prohibited asbestos notices
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Changes have made to enable the regulator to issue prohibited asbestos notices, to ensure the regulator has powers in relation to prohibited asbestos in circumstances where they may not otherwise be able to issue an improvement notice or prohibition notice. |
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Other minor changes to model WHS Act
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Other minor changes have been made to the model WHS Act, such as the clarification that work groups are negotiated and agreed between the PCBU and the workers who are proposed to form the work group or their representatives, and that an HSR is entitled to choose their WHS training courses |
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Changes to the model WHS Regulations
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There are revised requirements under the model WHS Regulations for record keeping and operator training for amusement devices and passenger ropeways, as well as additional guidance on the circumstances in which there is an obligation to comply with a Standard. |
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The changes to the model WHS Act will not automatically become part of State or Territory WHS legislation and steps will need to be taken by each State and Territory to implement the changes (if changes have not already been implemented).
Some jurisdictions have already enacted some of the recommended changes – for example, NSW updated its Work Health and Safety Act 2011 (NSW) (WHS Act (NSW)) in 2020 to include the offence of gross negligence and a prohibition against providing or benefitting from insurance or indemnity arrangements in respect of WHS monetary penalties (see our separate alerts on this here and here). Western Australia also recently introduced a similar prohibition as part of its new Work Health and Safety Act 2020 (WA), which commenced on 31 March 2022. The ACT also introduced the Workplace Legislation Amendment Bill 2022 recently which aims to implement many of the Boland recommendations, including the insurance and indemnity prohibition.
In contrast, NSW has not included the offence of industrial manslaughter in its WHS Act (NSW) at this time, noting though that a workplace death may still constitute manslaughter under the Crimes Act 1900 (NSW). However, other harmonised WHS jurisdictions, such as Western Australia have already introduced this offence. Victoria (while not a harmonised WHS jurisdiction) had already introduced the offence of workplace manslaughter in its Occupational Health and Safety Act 2004 (Vic) in July 2020.
Other changes have also been made to WHS guidance following the Boland recommendations. For example, a new fact sheet was published by Safe Work Australia in April 2022 to clarify WHS duties in a contractual chain, in order to assist workers and PCBUs to understand their duties arising under the model WHS Act. The existing SafeWork Australia model Code WHS Consultation, Cooperation and Coordination code and Worker Representation was also recently updated following the Boland recommendations.
Other Boland recommendations remain a work in progress, for example, a review of incident notification provisions. However, we note the ACT is seeking to update its incident notification provisions with the introduction of the Workplace Legislation Amendment Bill 2022, which would require PCBUs to notify WorkSafe ACT of sexual assault incidents. This was introduced (in part) to reflect the Boland recommendation to provide notification triggers for psychological injuries and injuries or illness emerging from new work practices or arrangements.
What next?
Organisations should review changes to the model WHS laws and keep an eye on when the changes will (or may have already) be introduced in State and Territory jurisdictions relevant to their operations.
In particular, organisations with existing insurance or indemnity arrangements in place for WHS penalties should assess and update these arrangements going forward, noting that NSW introduced prohibitions in 2020. In jurisdictions where insurance and indemnity arrangements are prohibited, organisations should re-visit their risk profile and controls for WHS, as well as reporting arrangements, to ensure its risk management systems and reporting structures for WHS are in line with current WHS obligations and regulatory expectations.
Further review of existing WHS systems and reporting structures will also be warranted if organisations have not fully turned their mind to the management of psychosocial hazards in the workplace, particularly given the specific regulatory guidance in place now to manage this risk.
