By Michael Selinger
In yesterday’s Health & Safety Bulletin we looked at the background of the WHS Act independent review (Review) and the types of questions that were asked about how current model WHS laws could be improved.
Today, we examine the recommendations that were made by the Review and how they could affect your business.
What were the recommendations?
In total there were 34 recommendations made by the Review ranging from broad recommendations on the role of Safe Work Australia, the interaction between State and Territory regulators and improving the consistency in prosecutorial discretion in enforcement, right down to very detailed recommendations about aligning dates for compliance with notices for production of documents, photo ID on construction industry White Cards and a suggested review of the high-risk work licence classes for cranes.
Increased penalties and industrial manslaughter
Perhaps not surprisingly, the Review recommended the increase in maximum penalties, noting that in harmonised jurisdictions they have not increased with CPI or at all since 2011.
Further, in accordance with the recent public outcry over serious workplace incidents, a recommendation was made that a separate offence for industrial manslaughter be included in the WHS Act. This was coupled with a suggestion that Category 1 offences (being the most serious) should be expanded to pick up ‘grossly negligent’ behaviour in addition to the current element of ‘recklessness’.
Of these recommendations, probably only the increase of maximum fines will be initially adopted by all jurisdictions, as the political debate over separate industrial manslaughter laws continues to rage.
Immediate practical recommendations
A number of the recommendations, if implemented, could have immediate practical consequences for organisations.
- Incident notification – The Review noted that Incident notification provisions are causing confusion, are ambiguous and do not capture all relevant incidents – in particular the developing area of psychosocial injury. It was recommended that a notification trigger should be included for psychological injuries and the test for ‘serious injury or incident’ or ‘dangerous incident’ (being the kind of injuries that should be notified) should be clarified within the WHS Act.
- Removal of right to seek indemnity from insurer – Following the concerns of the Magistrate in the 2013 South Australian case of Hillman v Ferro Con (SA) Pty Ltd (in liquidation), the Review recommended that duty holders should be outlawed from getting insurance for a penalty in a WHS matter on the basis that it goes against public policy and the purpose of the legislation. Specifically, the Review stated that the WHS Act should be amended (similarly to the New Zealand Health and Safety Work Act 2015) 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.
- Changing the HSR rules – particularly for small businesses of less than 15 workers, the Review recommended that:
- there be only one work group for the business;
- HSRs are allowed to choose their training course;
- union representatives are allowed to assist an HSR on-site, even if they do not hold an entry permit under the Fair Work Act or other industrial law; and
- if an inspector cancels a PIN issued by an HSR, the inspector must deal with the underlying safety issue.
- Right of entry without notice– The model WHS laws place limits on when entry may be sought by an union official and require written notice of any entry to be provided within at least 24 hours, but not more than 14 days, before entering a workplace. This was an amendment made in 2014. The Review recommends the 24 hours’ notice requirement be removed which would allow an union official to immediately enter a worksite.
Practical Guidance recommendations
And in terms of practical guidance, the Review recommended that:
- A new model Code should be developed that clearly demonstrates how the principles applying to duties operate, with particular reference to their interaction with the duty to consult, cooperate and coordinate activities between duty holders. In particular, for those industries like labour hire, outsourcing, franchising, gig economy and other modern working arrangements.
- A SWMS template be developed for the construction industry with an intuitive, interactive tool that provides clear guidance on what information and actions are required to complete each section of the SWMS template.
- The 16 Australian Standards referred to in the Regulations either be replaced, removed or incorporated in the WHS Laws but in any event to have certainty expressed in the WHS Laws that the Standards are not mandatory unless otherwise stated.
- Update the model Codes and guidance with examples of Health & Safety Committees’ constitutions, agendas and minutes, and also provide practical examples of how the issue resolution process works.
The Review will take some time for governments and stakeholders to consider. At this stage, businesses should not expect to see any immediate changes to the law.
However, the Review provides a clear and cogent framework for the implementation of a number of practical changes to the current laws which will require businesses to review their systems and processes. Particular areas will include incident notification, HSRs, right of entry and insurance arrangements.
A full copy of the Review report can be found at https://www.safeworkaustralia.gov.au/doc/review-model-whs-laws-final-report.