On 26 February 2019, the report of the first national review of the model Work Health and Safety (WHS) laws was released (Report). The review was undertaken by independent reviewer Marie Boland (former Executive Director of SafeWork SA) in conjunction with Safe Work Australia at the request of Ministers with responsibility for WHS. The review process involved extensive consultation with a number of stakeholders.

While it was found that the model WHS laws are largely operating as intended, the Report makes 34 recommendations. Many of the recommendations are technical in nature, relating to an inspectors' powers, while others are targeted at introducing new offences or clarifying existing offences.

Key recommendations

Industrial manslaughter offence

The Report recommends that the model WHS Act include a new offence of industrial manslaughter for gross negligence causing death. The ACT and Queensland are currently the only jurisdictions that have industrial manslaughter offence provisions in addition to the Category 1 – 3 offences.

Under the current proposal, industrial manslaughter may be committed by either a person conducting a business or undertaking (PCBU) or an officer (as distinct from 'senior officer' referred to in the Queensland WHS Act). Ms Boland suggested that the model industrial manslaughter provision should differ in certain elements from the provisions in the Queensland WHS Act. Specifically, Ms Boland noted that the Queensland WHS Act falls short of targeting organisational as well as individual aspects of a corporation's conduct. In this regard, the recommended model industrial manslaughter provision expands the scope of the offence currently in place in Queensland beyond conduct which causes the death of a 'worker' to include the death of third parties to the work relationship such as clients, customers, visitors, or neighbours.

In making her recommendation, Ms Boland observed that the introduction of such an offence was necessary to 'address increasing community concerns that there should be a separate industrial manslaughter offence where there is a gross deviation from a reasonable standard of care' leading to a workplace fatality. If introduced, the offence will increase the risk profile for organisations and officers, but like in Queensland and the ACT will not change what steps are required to discharge the general duties under the model WHS Act.

'Gross negligence' for Category 1 offence

The Report recommends amending the model WHS laws to include that a duty holder commits a Category 1 offence if the duty holder is 'grossly negligent' in exposing an individual to a risk of serious harm or death.

Currently, a Category 1 offence under the model WHS Act includes the element of 'recklessness' which requires a duty holder to intentionally expose an individual to a risk of serious harm or death. Stakeholder concern was levelled at the difficulty in proving 'recklessness', evidenced by a limited amount of successful Category 1 prosecutions.

The Report considered that an additional 'gross negligence' offence would help to secure convictions for the most egregious WHS breaches as well as address public sentiment that duty holders suspected of committing serious WHS breaches were 'escaping punishment because the bar for conviction is set too high'.

Increases in penalties

Under the model WHS Act, the penalties for offences are expressed in monetary amounts (rather than penalty units, as is the case in Queensland). The Review represented the first opportunity to reconsider the penalty levels which have not been adjusted in line with inflation and increases in penalty units in certain jurisdictions.

The Report recommends that the penalty levels in the model WHS Act be increased to retain their value as a real deterrent and to reflect Consumer Price Index increases.

Prohibition on insurance for WHS fines

There is no current prohibition on businesses obtaining insurance policies which protect insured companies and officers from liability to pay fines for WHS breaches.

Based on the New Zealand approach, the Report recommends making it an offence to enter into a contract of insurance or similar arrangement under which a person is covered for liability for a monetary penalty under the WHS Act; provide insurance or a grant of indemnity for a monetary penalty under the WHS Act; and to take the benefit of such insurance or indemnity.

The Report observed that insurance policies protecting those guilty of WHS breaches have the potential to reduce compliance with the laws and undermine community confidence. It commented that prohibiting these insurance arrangements would act as an important deterrent. The recommendation does not preclude companies and officers from accessing insurance or indemnity for legal costs incurred in responding to an incident or defending a prosecution.

Regulations dealing with psychological health

The Report recommends amending the model WHS Regulations to deal with the identification of risks associated with psychological injury and the appropriate control measures to manage those risks.

The definition of 'health' in the model WHS Act expressly includes 'psychological health' and duty holders are required to ensure, so far as is reasonably practicable, that individuals are not exposed to risks to their psychological health, arising from their work.

In June 2018 Safe Work Australia released guidance material on managing workplace psychological health and safety. Notwithstanding this guidance, the Report observed that there are no model WHS Regulations or model Codes which reference psychological health or how to manage psychosocial risks or hazards. Stakeholder feedback suggested that a 'clear legislative framework within which to manage psychological health issues' was needed to assist duty holders.

Safety regulators already have the power to deal with psychological health, and actively do so (some regulators have established a psycho-social unit specifically dedicated to doing so). The amendments will not change the primary duty of a PCBU or its officers but are proposed to provide some more clarity around what control measures are required. This is likely to require some updates to existing policies and procedures.

The Report further recommends reviewing incident notification triggers in the model WHS Act to provide a notification trigger for psychological injuries and related incidents emerging from new work practices, industries and work arrangements.

Summary of other key recommendations

The Report also makes the following recommendations (among others):

• Considering how to achieve the policy intention that a union official accessing a workplace to assist a Health and Safety Representative (HSR) is not required to hold an entry permit under the Fair Work Act 2009 (Cth).
• Reviewing the model WHS Regulations and model Codes against agreed criteria for priority industries (including road transport, agriculture and construction), and developing criteria to continuously assess emerging business models, industries and hazards.
• Developing a model Code providing practical guidance on the application of the model WHS Act's principles that apply to WHS duties contained in section 13 to 17 (Principles) in relation to labour hire, outsourcing and other modern working arrangements, in addition to clarifying to what extent PCBUs must consult with other PCBUs.
• Developing a model Code to provide practical guidance on how PCBUs can meet the obligation associated with the Principles in the model WHS Act, including the duty to consult, co-operate and co-ordinate with other duty holders.
• Removing the requirement for WHS entry permit holders to give 24 hours' notice when entering a workplace to investigate suspected breaches of the model WHS Act.
• Permitting WHS regulators to obtain information relevant to investigations of suspected WHS breaches from other harmonised jurisdictions.
• Removing references to Standards in the model WHS laws where possible (and replacing them with the obligations as provided in the in the model WHS Regulations), as well as clarifying that compliance with Standards is not mandatory unless otherwise provided.
• Reviewing the National Compliance and Enforcement Policy to provide decision-making frameworks relevant to the key functions and powers of the regulation in order to ensure a more consistent approach to enforcement and compliance by WHS regulators.
• Developing national sentencing guidelines (akin to UK sentencing guidelines) for WHS offences in order to ensure consistency in sentencing outcomes. 
• Prescribing a Safe Work Method Statement (SWMS) basic template to assist PCBUs to better understand the format and the type of information to be included in a SWMS. 

What's next?

Before the WHS Ministers provide their response to the Report (which is expected to be later this year), the recommendations will be subject to a regulation impact statement process. This will involve a release of a consultation regulation impact statement and a call for submissions. It will then be a case of 'watch this space' to see whether the recommendations will be adopted by the harmonised jurisdictions.

Businesses should be prepared to act quickly to respond to the consultation process given the potential for significant change to the model WHS Act including in relation to industrial manslaughter, incident notification relating to psychological risks and right of entry for union officials.

The 196-page review is available on the Safe Work Australia website here.