There have been a number of changes in the Work Health and Safety (WHS) space across all jurisdictions in Australia in 2023. While navigating this area can be a difficult task for employers, ensuring that you are up to date with the relevant WHS (or OHS) laws is crucial to ensuring both the safety and well-being of your staff, as well as your own statutory compliance.
In this article, Mazars have summarised some of the major interest points that have arisen in 2023 (by jurisdiction) to give employers a snapshot of the types of issues that have attracted particular attention this year, recent and upcoming changes to statutory obligations, as well as other important information impacting the WHS space that employers should be aware of.
Commonwealth
WHS matters are generally regulated and enforced by the laws of the relevant state or territory. The Commonwealth’s Work Health and Safety Act 2011 applies to the Commonwealth, public authorities and a small number of companies (non-Commonwealth licensees).
Changes under the Work Health and Safety Amendment Act 2022 (‘the Act’) which came into effect 21 September 2023
1. Broadening the “Category 1” offence to include negligence as a fault element
The penalties under the WHS provisions are categorised into three categories, depending upon the type and seriousness of the alleged offence, with Category 1 providing for the highest maximum monetary penalties. A Category 1 offence now includes “negligence” as a fault element in relation to an incident that exposes an individual to a risk of death or serious illness without reasonable excuse, rather than just “recklessness”. The explanatory memorandum to the Work Health and Safety Amendment Bill 2022, indicates that the reason for this change is that it is intended to lower the threshold for conviction in relation to this offence. This is because unlike with the fault element of recklessness, “negligence” doesn’t require that the offender has a subjective awareness that their conduct posed a substantial risk of injury or illness, and continued with their conduct regardless. Therefore, this amendment makes it “easier” for the prosecution to prove a Category 1 offence.
2. Prohibiting insurance coverage for monetary penalties
The changes introduced by the Act make any insurance contract, or other arrangement that covers a person for any part of a monetary penalty under the Act, void and unenforceable. It also imposes an additional penalty for officers of a body corporate for entering into, or taking a benefit from, a contract that insures against liability for a monetary penalty of this kind.
3. Enhancing inspector powers
Inspectors are also afforded broader powers under these changes. This includes permitting inspectors to, within 30 days after they have entered the workplace, give a written notice requiring a person to produce specified documents within a specified time period, give written answers to specified questions with a specified period, or require the person to attend before the inspector.
Other
4. Psychosocial hazards
The model WHS legislation now includes additional duties pertaining to managing psychosocial risks. The purpose of the “model” Act is to suggest legislation for the states and territories to implement, however these laws are not enforceable unless adopted at the state and territory level into their respective statutes.
The model Work Health and Safety Regulations 2011 now provide for a duty of a Person Conducting a Business or Undertaking(“PCBU’s’”) to manage psychosocial risks. PCBU’s is a broad term to describe what would generally be referred to as a “business” but can include government departments, universities, partners in a partnership, and sole traders.
5. Additional laws were proposed in the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023
Further implications for of this Bill for employers are discussed in Mazars previous article here.
ACT
- The ACT has adopted nine of the independent review of the model WHS laws (‘the Boland review’) law changes.
- The Workplace Legislation Amendment Act 2022 (Amendment Act) also requires incidents of sexual assault to be notified to the WHS regulator.
- PCBU’s, as defined above, must notify the WHS regulator immediately upon becoming aware that an incident of sexual harassment has occurred. They must not disclose the identity of any person involved to the regulator in doing so.
- PCBU’s must keep a record of each notifiable incident for at least five years.
- There is also a duty for PCBU’s to take reasonable steps to eliminate sexual harassment and other unlawful behaviour from occurring in the workplace. WorkSafe ACT has recently identified a need for greater understanding amongst the broader public to manage sexual harassment and psychosocial risks in the workplace.
- In August 2023 the ACT government introduced regulatory reforms making it mandatory for home swimming pools to comply with modern safety standards. These include maintaining pool barriers, ensuring the barriers comply with the heights prescribed, ensuring gates are closed at all times when a pool is not in use, and informing prospective tenants of the requirements of their pool.
NSW
- The Parliament of NSW passed the Work Health and Safety Amendment Act 2023 on 12 October 2023 which, among other things, substantially increases the maximum penalties for Category 1 offences for the NSW jurisdiction, consistent with the model WHS laws.
- An inquiry was established on 25 July 2023 regarding the impacts, and potential future impacts, of gold, silver, lead and zinc mining on human health, land, air and water quality in NSW.
NT
- WorkSafe Inspectors in NT commenced a six-month trial of the use of body-worn cameras for the purpose of improving efficiency, increasing accountability and providing additional security for the inspectors.
- On 1 July 2023 the WHS Regulations were amended to clarify existing employer duties to manage psychosocial risk consistent with the model WHS Regulations.
QLD
- An Amusement Devices Code of Practice 2023 has been developed, commencing under the Work Health and Safety Act 2011 on 1 February 2024, which will provide practical guidance on managing health and safety risks associated with amusement devices.
- On 1 September 2023 the Mining and Quarrying Safety and Health (Lead) Amendment Regulation 2023 commenced with the purpose of improving the risk control of lead and lead health surveillance of workers at mineral mines, lowering the risk to workers of adverse health outcomes from lead.
- Research from Royal Life Saving identified Northern Queensland as an area for concern due to the region being over-represented in drowning statistics. The Townsville and Surround Water Safety Strategy 2023 – 2026 was developed to identify key issues and recommendations to prevent drownings. The predominant issues and risk factors identified in the strategy relevant to pool drownings included:
- A lack of consistent and visible signage;
- Insufficient or lacking barriers ;
- Unclear standards pertaining to design and operations;
- Inconsistent supervision standards and a lack of independent assessment pertaining to these standards; and
- Lack of skill and knowledge pertaining to swimming and water safety.
SA
- The Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023 proposed an increased penalty for those found to be reckless or grossly negligent in conduct which breaches a WHS duty and results in the death of another person. The proposed maximum penalty is 20 years imprisonment and an $18 million penalty for companies.
- On 1 September 2023, consistent with the model WHS legislation, laws came into effect pertaining to uncontrolled processing of engineered stone products. The laws prohibit uncontrolled processing of engineered stone products in a bid to help prevent the spread of dust diseases.
- The Work Health and Safety (Psychosocial Risks) Amendment Regulations 2023 will come into effect in December 2023 and will provide guidance on managing the risk of psychological hazards in the workplace.
- SafeWork SA now include body worn cameras as part of an inspector’s operational equipment during visits to worksites or while undertaking other investigation or compliance activities.
TAS
- The Tasmanian Parliament introduced the Work Health Safety Amendment Bill 2023 which, once assented to, will implement recommendations from the Boland Review.
VIC
- The regulations for dangerous goods were updated to align with international standards and ensure the safe and compliant transportation of dangerous goods in Victoria.
- The Elevating Work Platforms industry standard (Edition 4) was published outlining new requirements for safety observers.
WA
- Amendment regulations which came into effect on 6 May 2023 established a rebuttable presumption of work-related injury for post-traumatic stress disorder for firefighters and added other cancers suffered by firefighters to be presumptively recognised.
- A draft code for managing electrical risks in the workplace was developed. The Work Health and Safety Commission has sought public comment on the draft.
- The Government launched a “speak up” campaign to address sexual harassment and bullying in the resources sector.
The above is just a snapshot of the changes in each jurisdiction. Given the importance of adhering to the duties surrounding health and safety in a workplace environment, it is crucial that employers are across their relevant obligations.
If you would like assistance navigating this complex space and confirming that you are implementing adequate measures to protect yourself and your employees, please reach out to one of Mazars specialised consultants for a confidential discussion.
Published: 21/12/2023
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