The model WHS laws review: where to from here?
Which recommendations from the model WHS review are likely to go ahead? What is their significance? We speak to the experts.
During 2018, the content and operation of model WHS laws underwent a review process in order to ascertain whether the laws were working effectively.
Safe Work Australia appointed Marie Boland, formerly the executive director of SafeWork SA, to lead this independent review.
While the review found that the laws are largely operating as intended, the Review of the model Work Health and Safety laws final report submitted by Boland to WHS Ministers makes 34 recommendations, some of which are technical and others that reference the need for further analysis.
Key recommendations relate to the model WHS Regulations and Codes of Practice. These include:
- making regulations on psychological health;
- higher penalties and other measures to strengthen the compliance and enforcement framework and enhance deterrence; and
- clarifying requirements for meaningful WHS consultation, representation and participation to improve safety outcomes.
Addressing mental health in the workplace
According to Sparke Helmore Lawyers, mental health recommendations arising from the review are particularly pertinent.
“Understanding of PCBUs’ safety obligations and workplace mental health is not as strong as what we see for the management of physical risks,” said Jackson Inglis, Partner at Sparke Helmore.
“The model laws define ‘health’ to include physical and psychological health, but from what we see there’s a considerable way to go before workplace mental health and safety is managed in the same way as physical health and safety. While most PCBUs accept the WHS laws apply to mental health, they are less confident about the steps that should and can be taken to control risks to mental health. Given this, the implementation of a model code about mental health at work is sure to be high on the agenda for regulators.”
Harmonising WHS laws across all jurisdictions
In terms of recommendations that promote harmonisation of WHS across all jurisdictions within Australia, as well as improving overall safety for workers, reviewer Marie Boland said Recommendations 1, 2 and 5 are particularly important.
Recommendation 1: Review the model WHS Regulations and model Codes suggests that the model WHS Regulations and model Codes should be reviewed against agreed criteria in terms of how they relate to the seven Australian Strategy priority industries.
“This provides an opportunity to take a fresh look at the regulations and codes in the context of emerging industries, risks and technologies,” Boland said.
“It is also an opportunity to look at the Australian Strategy priority industries, and in consultation with workers and businesses in those industries, work together to assess whether the current model regulations and codes remain fit for purpose and are providing the optimum protections. When I was consulting for the review, I met many health service workers, for example, who called for a code of practice for their industry.
“As I said in the report the model regulations, while a great achievement, were a consolidation of what was there prior to the model laws. Many of the key new principles in the model Act which were put in to increase safety were not followed through in the regulations and codes. Many industries and business models were not in existence when the model regulations and codes were developed. Recommendation 1 provides an opportunity to take the time to reassess in this rapidly changing context.
Recommendation 2: Make regulations dealing with psychological health states that model WHS regulations should be amended to deal with how to identify the psychosocial risks associated with psychological injury, and the appropriate control measures to manage those risks.
“Everywhere I went during the review, one of the top three issues raised by business owners, workers and regulators was the need for more ‘architecture’ in the model laws to deal with managing psychosocial risks,” Boland said.
“This is the recommendation that I see as being critical to supporting greater emphasis on the culture of organisations — on increasing the focus on a systematic safety culture and shifting the narrative of discussions about inappropriate behaviours from being an individual’s problem to an organisation’s challenge.”
Meanwhile, Boland believes that Recommendation 5: Develop a new model Code on the principles that apply to duties is perhaps one of the most important recommendations to come out of the report.
“It is key to addressing safety in new business models such as the gig economy, complex networks and contracting arrangements,” she said.
“The principles applying to duties were a key positive innovation in the model Act. Feedback from the review is that people recognise the importance of the principles but don’t know how to put them into practice.”
Industrial manslaughter and union right of entry
The report also suggests that the model WHS Act be amended to provide for a new offence of industrial manslaughter, stating that the offence should provide for gross negligence causing death. In addition, it recommends that a union official accessing a workplace to provide assistance to an HSR should not be required to hold an entry permit under the Fair Work Act or another industrial law. These two recommendations have garnered some attention in the media.
“I knew that the industrial manslaughter recommendation would likely attract attention,” Boland said.
“I think it’s important to remember that this recommendation is one of a package of recommendations which are intended to be considered together — the others are increasing penalties and sentencing guidelines. It is also important to remember that I recommended that Safe Work Australia work with legal experts on this package and so there is an opportunity to consider them carefully.”
Emma Gruschka, Senior Associate at Sparke Helmore Lawyers, said it is not yet known what kind of effect these recommendations could have on businesses.
“Whether the new industrial manslaughter laws themselves will have any impact on business remains to be seen, given we are now seeing laws that were already in existence being prosecuted in a more aggressive way by regulators, and sentences of increasing severity being handed down by the courts,” she said.
“The union right of entry recommendation is also interesting, and potentially opens the door for unions to be on sites and in workplaces without a permit, when dealing with health and safety issues. While no-one can dispute the significant role unions have played in setting world-class safety standards in this country, it is difficult to avoid the conclusion that such a power may be open to misuse by certain union officials when entering workplaces under the guise of a safety issue, only to engage in other non-safety activities. The numerous prosecutions of CFMMEU officials by the Australian Building and Construction Commissioner in recent years provide ample evidence to support this concern.”
The Review of the model Work Health and Safety laws final report is currently with WHS Ministers for their consideration.
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