Safe Work Australia releases report of the review of the model WHS laws

Tuesday 26 February 2019

Safe Work Australia has released the report of the review of the model WHS laws conducted by Marie Boland.

The 195 page report makes 34 recommendations. Some will be contentious for SISA, including the introduction of industrial manslaughter provisions and negating the case law that requires union officials to have entry permits when invited to assist HSRs.

At this stage, the recommendations remain just that. Further steps would be for Safe Work Australia to send them to the Council of Australian Governments (COAG), which can then agree to refer them to the State and Territory Governments for legislative action. Ultimately it is for the State and Territory Governments to decide which recommendations, if any, they will turn into amendments of the respective WHS Acts, regulations and Codes of Practice.

SISA needs to be well prepared when these recommendations reach the State Government for consideration. We therefore ask all members with WHS expertise to review at least the Executive Summary of the report and provide comments on those recommendations that may have drawbacks for our members.

You can download the report by clicking here.

The recommendations are listed here:
 
Chapter 1: Legislative framework

Recommendation 1: Review the model WHS Regulations and model Codes
Review the model WHS Regulations and model Codes against agreed criteria on the purpose and content of the second and third tiers of the model WHS laws as they relate to the seven Australian Strategy priority industries.

Recommendation 2: Make regulations dealing with psychological health
Amend the model WHS Regulations to deal with how to identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks.

Recommendation 3: Continuously assess new industries, hazards and working arrangements
Safe Work Australia develop criteria to continuously assess new and emerging business models, industries and hazards to identify if there is a need for legislative change, new model WHS Regulations or model Codes.

Chapter 2: Duties of care

Recommendation 4: Clarify that a person can be both a worker and a PCBU
Amend s 5(4) of the model WHS Act to make clear that a person can be both a worker and a PCBU, depending on the circumstances.

Recommendation 5: Develop a new model Code on the principles that apply to duties
Develop a model Code to provide practical guidance on how PCBUs can meet the obligations associated with the principles contained in ss 13–17 (the Principles), including examples of:

  • the application of the Principles to labour hire, outsourcing, franchising, gig economy and other modern working arrangements, and
  • processes for PCBUs to work co-operatively and cohesively to discharge their duties (in the context of the duty to consult, co-operate and co-ordinate with other duty holders—s 46 of the model WHS Act).

Chapter 3: Consultation, representation and participation

Recommendation 6: Provide practical examples of how to consult with workers
Update the model Code of Practice: Work health and safety consultation, co-operation and co-ordination to include practical examples of how meaningful consultation with workers can occur in a range of traditional and non-traditional settings.

Recommendation 7a: New arrangements for HSRs and work groups in small businesses
Amend the model WHS Act to provide that, where the operations of a business or undertaking ordinarily involves 15 workers or fewer and an HSR is requested as per the requirements of the model WHS laws, the PCBU will only be required to form one work group for all workers represented by one HSR and a deputy HSR unless otherwise agreed between the workers and the PCBU.

Recommendation 7b: Work group is negotiated with proposed workers
Amend the model WHS Act to provide that a work group is negotiated with workers who are proposed to form the work group.

Recommendation 8: Workplace entry of union officials when providing assistance to an HSR
Safe Work Australia work with relevant agencies to consider how to achieve the policy intention that a union official accessing a workplace to provide assistance to an HSR is not required to hold an entry permit under the Fair Work Act or another industrial law, taking into account the interaction between Commonwealth, state and territory laws.

Recommendation 9: Inspectors to deal with safety issue when cancelling a PIN
Amend the model WHS Act to provide that, if an inspector cancels a PIN for technical reasons under s 102 of the model WHS Act, the safety issue which led to the issuing of the PIN must be dealt with by the inspector under s 82 of the model WHS Act.

Recommendation 10: HSR choice of training provider
Amend the model WHS Act to make it clear that for the purposes of s 72:

  • the HSR is entitled to choose the course of training, and
  • if the PCBU and HSR cannot reach agreement on time off for attendance or the reasonable costs of the training course that has been chosen by the HSR, either party may ask the regulator to appoint an inspector to decide the matter.

Recommendation 11: Provide examples of HSC constitutions, agendas and minutes
Update the model Codes and guidance with examples of HSC constitutions, agendas and minutes.

Recommendation 12: Update guidance on issue resolution process and participants
Update the Worker representation and participation guide to include:

  • practical examples of how the issue resolution process works, and
  • a list of the various representatives entitled to be parties in relation to the issues under s 80 of the model WHS Act as well as ways of selecting a representative and informing the other parties of their involvement.

Recommendation 13: Resolving outstanding disputes after 48 hours
Amend the model WHS Act to provide for:
a. disputes under ss 82 and 89 of the model WHS Act to be referred to the relevant court or tribunal in a jurisdiction if the dispute remains unresolved 48 hours after an inspector is requested to assist with resolving disputes under the default or agreed procedures and with cease work disputes
b. a PCBU, a worker, an HSR affected by the dispute or any party to the dispute to notify the court or tribunal of the unresolved issue they wish to be heard
c. the ability for a court or tribunal to exercise any of its powers (including arbitration, conciliation or dismissing a matter) to settle the dispute, and
d. appeal rights from decisions of the court or tribunal to apply in the normal way.

Recommendation 14: Clarify court powers for cases of discriminatory or coercive conduct
Amend the model WHS Act to make it clear that courts have the power to issue declaratory orders in proceedings for discriminatory or coercive conduct.

Recommendation 15: Remove 24-hour notice period for entry permit holders
Amend the model WHS Act to retain previous wording in s 117.

Chapter 4: Compliance and enforcement

Recommendation 16: Align the process for the issuing and service of notices under the model WHS Act to provide clarity and consistency
Amend the model WHS Act to align the service of notices provisions under s 155 and s 171 with those in s 209 of the model WHS Act dealing with improvement, compliance and non-disturbance notices.

Recommendation 17: Provide the ability for inspectors to require production of documents and answers to questions for 30 days after the day they or another inspector enter a workplace
Amend the model WHS Act to provide that, instead of being limited to the inspector who enters (or has entered) a workplace, the powers to require production of documents and answers to questions can be exercised by any inspector within 30 days following an inspector’s entry to that workplace.

Recommendation 18: Clarify that WHS regulators can obtain information relevant to investigations of potential breaches of the model WHS laws outside of their jurisdiction
Amend the model WHS Act to clarify that the regulator’s power to obtain information under s 155 has extraterritorial application.

Recommendation 19: Enable cross-border information sharing between regulators
Amend the model WHS Act to include a specific power enabling regulators to share information between jurisdictions in situations where it would aid them in performing their functions in accordance with the model WHS laws.

Recommendation 20: Review incident notification provisions
Review incident notification provisions in the model WHS Act to ensure they meet the intention outlined in the 2008 National Review, that they provide for a notification trigger for psychological injuries and that they capture relevant incidents, injuries and illnesses that are emerging from new work practices, industries and work arrangements.

Chapter 5: National Compliance and Enforcement Policy
Recommendation 21: Review the National Compliance and Enforcement Policy (NCEP)
Review the NCEP to include supporting decision-making frameworks relevant to the key functions and powers of the regulator to promote a nationally consistent approach to compliance and enforcement.

Chapter 6: Prosecutions and legal proceedings

Recommendation 22: Increase penalty levels

  • Amend the penalty levels in the model WHS Act to reflect increases in consumer price index and in the value of penalty units in participating jurisdictions since 2011, and
  • Review the increased penalty levels as part of future reviews of the model WHS Act and model WHS Regulations to ensure they remain effective and appropriate.

Recommendation 23a: Enhance Category 1 offence
Amend s 31 of the model WHS Act to include that a duty holder commits a Category 1 offence if the duty holder is grossly negligent in exposing an individual to a risk of serious harm or death.

Recommendation 23b: Industrial manslaughter
Amend the model WHS Act to provide for a new offence of industrial manslaughter. The offence should provide for gross negligence causing death and include the following:

  • The offence can be committed by a PCBU and an officer as defined under s 4 of the model WHS Act.
  • The conduct engaged in on behalf of a body corporate is taken to be conduct engaged in by the body corporate.
  • A body corporate’s conduct includes the conduct of the body corporate when viewed as a whole by aggregating the conduct of its employees, agents or officers.
  • The offence covers the death of an individual to whom a duty is owed.

Safe Work Australia should work with legal experts to draft the offence and include consideration of recommendations to increase penalty levels (Recommendation 22) and develop sentencing guidelines (Recommendation 25).

Recommendation 24: Improve WHS regulator accountability for investigation progress
Amend the model WHS Act to remove the 12-month deadline for a request under s 231 that the regulator bring a prosecution in response to a Category 1 or Category 2 offence and to ensure ongoing accountability to the person who made the request until a decision is made on whether a prosecution will be brought.

Recommendation 25: Consistent approach to sentencing
Safe Work Australia work with relevant experts to develop sentencing guidelines to achieve the policy intention of Recommendation 68 of the 2008 National Review. As part of this process, any unintended consequences due to the interaction of local jurisdictional criminal procedure and sentencing legislation should also be considered. (I note that the work required by Recommendation 22 (‘Increase penalty levels’), Recommendation 23a (‘Enhance Category 1 offence’) and Recommendation 23b (‘Industrial manslaughter’) could be combined with the work required by this recommendation).

Recommendation 26: Prohibit insurance for WHS fines
Amend the model WHS Act to make it an offence to:

  • enter into a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under the model WHS Act
  • provide insurance or a grant of indemnity for liability for a monetary penalty under the model WHS Act, and
  • take the benefit of such insurance or such an indemnity.

Chapter 7: Model Work Health and Safety Regulations

Recommendation 27: Clarify the risk management process in the model WHS Act
Amend the model WHS Act to clarify the risk management process by including a hierarchy of controls (consistent with reg 36) and making any corresponding amendments necessary to the model WHS Regulations.

Recommendation 28: Improved recording of amusement device infringements and operator training
Amend reg 242 of the model WHS Regulations to ensure that details of statutory notices issued by any WHS regulator and evidence of operator training and instruction are included in the device’s log book.

Recommendation 29a: Add a SWMS template to the WHS Regulations
Amend the model WHS Regulations to prescribe a SWMS template.

Recommendation 29b: Develop an intuitive, interactive tool to support the completion of fit-for-purpose SWMS
Safe Work Australia develop an intuitive, interactive tool to assist in the effective and efficient completion of fit-for-purpose SWMS.

Recommendation 30: Photographic ID on White Cards
Amend the model WHS Regulations to require photographic ID on White Cards consistent with high-risk work licences.

Recommendation 31a: Consider removing references to Standards in model WHS Regulations
Review the references to Standards in the model WHS laws with a view to their removal and replacement with the relevant obligations prescribed within the model WHS Regulations.

Recommendation 31b: Compliance with Standards not mandatory unless specified
Amend reg 15 of the model WHS Regulations (‘Reference to Standards’) to make it clear that compliance with Standards is not mandatory under the model WHS laws unless this is specifically stated.

Recommendation 32: Review MHF Regulations
Review the model WHS Regulations dealing with MHF, with a focus on administrative or technical amendments to ensure they meet the intended policy objective.

Recommendation 33: Review crane licence classes
Review the high-risk work licence classes for cranes to ensure that they remain relevant to contemporary work practices and equipment.

Recommendation 34a: Improving the quality of asbestos registers
Amend the model WHS Regulations to require that asbestos registers are created by a competent person and update the model Codes to provide more information on the development of asbestos registers.

Recommendation 34b: Competent persons in relation to asbestos
Review existing requirements for competent persons, including consideration of amendments to the model WHS Regulations to provide specific competencies for asbestos-related tasks or requirements for further guidance on the skills and experience required for all asbestos-related tasks.