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Model WHS Act amended to incorporate review recommendations

In 2010, the model Work Health and Safety Act was endorsed, followed by the model WHS Regulations and model Codes of Practices. Other than Victoria, most Australia State and Territories have now adopted the model WHS laws in their jurisdictions.

In 2010, the model Work Health and Safety (WHS) Act was endorsed, followed by the model WHS Regulations and model Codes of Practices (model WHS laws). Other than Victoria, most Australian State and Territories have now adopted the model WHS laws in their jurisdictions.

In 2018, Safe Work Australia was requested to undertake a review of the model WHS laws to ensure that they were operating as intended, including reviewing the framework of duties and the compliance and enforcement provisions in practice.

The Final Report into the review of the model WHS laws (the Report) was released in 2019 and made a total of 34 recommendations.

Recently, the model WHS laws were updated to incorporate a number of the recommendations from the Report. The amendments are as follows:

  • Providing a definition of psychosocial hazards and clarifying duties in relation to psychosocial risks in the model WHS Regulations;
  • Clarifying the definition of work group to provide that work groups are negotiated and agreed between the person conducting a business and undertaking (PCBU) and workers proposed to form the work group and their representatives;
  • Clarifying that a health and safety representative (HSR) has an entitlement to choose an approved HSR course of their choice;
  • Removing the requirement for a WHS permit holder to provide at least 24-hour notice of their proposed entry and suspected contravention. A WHS permit holder must now provide notice of their proposed entry and suspected contravention as soon as practicable after entering the workplace;
  • Aligning how certain notices were issued and served to be consistent with other sections of the model WHS Act;
  • Providing inspectors with the ability to require the production of documents and answer questions within 30 days of entry into a workplace;
  • Clarifying the power of the WHS regulator to obtain information of potential WHS law breaches in different jurisdictions;
  • Providing regulators with the power to share or disclose information across jurisdictions;
  • Amending the Category 1 Offence to be one of “gross negligence and reckless conduct” rather than recklessness alone;
  • Extending the time in which persons can request that the regulator commence a prosecution where it is believed that a Category 1 or Category 2 offence has been committed;
  • Requiring the WHS regulator to provide investigation updates every three months until the completion of the investigation;
  • Prohibiting persons from entering into, providing or taking the benefit of insurance contracts or other arrangements which provides indemnity from liability for a WHS monetary penalty or to cover the costs of a WHS fine or penalty;
  • Introducing new recordkeeping requirements for amusement devices and passenger ropeways in the model WHS Regulations; and
  • Providing clarity in the model WHS Regulations about when there is the obligation to comply with Standards.

While the amendments will be of no effect unless the State and Territory Governments amend the WHS laws in their respective jurisdictions, some of the recommendations have already been implemented in certain jurisdictions.

For example, in June 2020 the NSW Government amended the Work Health and Safety Act 2011 (NSW) to include gross negligence as an element of a Category 1 offence, and making it an offence for a person to enter into, provide or take the benefit from an insurance contract or other indemnity arrangement for liability of a monetary penalty that may be imposed.

While the Report recommended that the model WHS Act be amended to include the new offence of industrial manslaughter, SafeWork Australia, tasked with reviewing the Report recommendations, recommended that only the changes to the Category 1 offence be supported. Notwithstanding this, most of the Australian States and Territories (other than South Australia, NSW and Tasmania) have introduced industrial manslaughter laws.

Employers should take the time to ensure that they regularly review applicable WHS legislation to ensure that they are complying with the duties and obligations.

Information provided in this news alert is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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