The national review of the model WHS laws—Times, they are a changin'01 March 2018
Model Work Health and Safety (WHS) legislation has been adopted in most Australian jurisdictions to achieve a balanced and nationally consistent framework to promote health and safety in workplaces and during work activities.
The Commonwealth and each relevant state and territory is responsible for making and enforcing provisions to give effect to the model WHS laws. Regular reviews of this legislation and associated instruments are required to ensure consistency, effectiveness and achieve improvements. In most jurisdictions, there are express provisions within the enacting legislation that require the conduct of regular reviews—for example, s 276B of the Work Health and Safety Act 2011 (NSW) requires reviews be carried out every five years.
SafeWork Australia is the national statutory body responsible for conducting reviews and providing recommendations regarding the model WHS laws. SafeWork Australia is empowered and operates pursuant to an Intergovernmental Agreement and the SafeWork Australia Act 2008 (Cth).
SafeWork Australia is undertaking its first comprehensive review of the model WHS laws since their enactment. The review is expected to be completed by the end of 2018. We anticipate that the findings and recommendations from the review will be the catalyst for a number of significant changes to the regulatory landscape of WHS matters in Australia.
Who’s in and who’s out
Seven of the nine Australian legal jurisdictions (commonly referred to as the “harmonised” jurisdictions) have adopted and implemented the model WHS laws—the Commonwealth, Australian Capital Territory, New South Wales, Northern Territory and Queensland each implemented legislation consistent with the model WHS laws on 1 January 2012. South Australia and Tasmania followed suit on 1 January 2013.
Western Australia and Victoria are yet to join the harmonised jurisdictions. Western Australia is considering implementing certain aspects of the model WHS laws, but there is no indication that Victoria will move towards harmonising in the near future.
Scope and purpose of the review
SafeWork Australia’s review will primarily consider and comment on whether:
- the model WHS laws are achieving their original objectives
- the model WHS laws are having any unintended consequences
- safety duties imposed by the model WHS laws are able to adapt to change
- the compliance and enforcement provisions of the model WHS laws are effective in deterring non-compliance, and
- the consultation, representation and issue resolution provisions in the model WHS laws are being effectively used to appropriately protect workers.
The review will be evidence-based and involve an extensive consultation phase. Stakeholders from a range of backgrounds and industries have been invited to provide feedback on their experiences of, observations and recommendations about the model WHS laws.
SafeWork Australia’s review will be published. It is expected to propose actions for the respective ministers to consider improving the model WHS laws and identify where the applicable legislation requires refinement.
What results we expect from the review
On the basis of recent WHS trends, we anticipate that the findings of the review will focus on particular areas:
A number of harmonised jurisdictions have moved (or foreshadowed a move) towards the introduction of an industrial manslaughter offence. This is in response to a number of high-profile catastrophic incidents and is an attempt to bolster enforcement against non-compliance. The effectiveness of enforcement mechanisms under the model WHS Acts are likely to be evaluated and SafeWork Australia may provide guidance as to whether a separate “industrial manslaughter” offence should be introduced nationally.
The prevalence of mental health issues is widely acknowledged as a serious contemporary challenge and WHS issue in Australia. Mental health issues have a significant impact on the wellbeing of individuals and are estimated to collectively cost Australian workplaces approximately $10.9 billion annually. We expect the review to assess how the model WHS laws apply in practice in instances of psychological risks to WHS and whether greater regulatory guidance is needed.
A stated objective of the model WHS laws is to ensure a number of individuals or organisations can be held accountable in relation to the same risks. Regulators have successfully prosecuted multiple organisations for breaches of duties relating to the same event, but prosecutions of individuals for their role have been more haphazard: there have only been a few cases pursued that resulted in a conviction of “officers” and “workers”. Accordingly, SafeWork Australia may seek to evaluate the effectiveness of the current provisions and make any associated recommendations.
SafeWork Australia is also likely to examine the current differences between the WHS laws implemented in the harmonised jurisdictions that we highlight below. How the different provisions affect behaviour or the experience in these jurisdictions may indicate what works well and what may need improving.
Same but different
The key obligations imposed by the legislation enacted in the harmonised jurisdictions are essentially the same. Notable differences between the jurisdictions include:
- industry-specific exclusions from safety obligations, particular requirements in managing certain identified risks (such as asbestos or working at heights) and the selective adoption of codes of practice
- the rights of inspectors, unions and health and safety representatives
- the practices and procedures involved in accessing particular courts and tribunals (most notably with respect to appeal processes)
- the extent of enforcement powers, and
- terminology and defined terms (such as the concept of penalty units).
A significant point of difference in South Australia is that the privilege against self-incrimination is preserved (i.e. an individual may refuse to provide information during a WHS investigation on the ground that the response may incriminate that person, see s 172 of the Work Health and Safety Act 2012 (SA)). This privilege is not afforded to persons in any other harmonised jurisdiction, although there are qualifications to and constraints on the subsequent use of information that a person is compelled to provide.
What are the next steps?
The consultation phase of the review, during which SafeWork Australia invited feedback and submissions on the operation of the model WHS laws, recently closed on 13 April 2018.
The review is likely to significantly influence the future of WHS regulation and policy in Australia and may also influence whether Western Australia and Victoria move towards harmonisation. It is important that businesses keep an eye out for any subsequent developments that may affect their specific circumstances and we will provide updates as the review progresses.