Safe Work Australia has announced amendments to the model WHS laws. Below two legal experts highlight the key amendments and their recommendations for organisations.

On 6 June 2022, Safe Work Australia announced a range of amendments to the model WHS laws. The amendments cover a range of issues. However, amendments in relation to managing psychosocial risk will have day-to-day consequences for all workplaces in jurisdictions which adopt the changes. 

The other significant change is in relation to a proposed prohibition on insurance for penalties.

These amendments to the model workplace health and safety (WHS) laws reflect an agreement reached by the Ministers responsible for WHS in each jurisdiction in May 2021 regarding the implementation of recommendations made by the Boland Review of the model WHS laws. 

The Boland Review found the model WHS laws were working largely as intended. However, it noted that more needed to be done to help parties meet their duties with respect to psychological health, and ensure monetary penalties act as an effective deterrent where breaches of the WHS laws are proven.

It is now up to each State and Territory to adopt the amendments to the model WHS laws. Some are ahead of the curve and have already implemented a range of measures, ranging from Codes of Practice to equivalent amendments to their WHS legislation.

While Victoria hasn’t adopted the model WHS laws, it has already proposed regulations in relation to managing psychosocial risk, which are in substantially similar terms to those now contained in the model WHS laws.

Key amendments to be aware of

Key amendments to the model WHS Act and Regulations include provisions which:

Define psychosocial hazard and psychosocial risk. They also provide an express obligation on a Person Conducting a Business or Undertaking (PCBU) to manage psychosocial risks in accordance with risk management principles (i.e. identify hazards, eliminate or minimise risks so far as is reasonably practicable, maintain and review control measures) [rr55A-55D]

Prohibit insurance or other indemnity arrangements covering liability for WHS penalties [s272A]

Add gross negligence as an alternative fault element to recklessness in Category 1 offences [s31]

Enable any inspector to issue a notice to produce documents or information within 30 days of an inspection (even if they did not attend workplace), and empower people required to attend an interview with an inspector to request this occurs by audio or audio-visual link [s171(2A)-(2E)]

Enable regulators to share confidential information or documents, obtained in the course of exercising WHS functions, with another WHS regulator. This is in cases where the regulator reasonably believes it is necessary for the administration or enforcement of the Act or a corresponding WHS law, or to lessen or prevent a serious risk to public health or safety [s271A].

Other amendments to the model WHS laws include allowing Health and Safety Representatives to choose which training courses they attend (i.e. without consulting the PCBU), and clarifying that work groups are to be negotiated and agreed with the workers who are proposed to form the work group (ss52 and 72 Model WHS Act). View the full list of the amendments for more information.

Managing psychosocial risks

The new model WHS Regulations about psychosocial hazard and risk provide useful guidance about the steps PCBUs need to take in considering this risk, and considerations that are relevant when determining appropriate control measures.

The new model WHS Regulations define psychosocial hazard broadly to include any hazard that:

• arises from or relates to the design or management of work, a work environment, plant at a workplace, or workplace interactions or behaviours
• may cause psychological harm (whether or not it may also cause physical harm).

Psychosocial risk is defined as any risk to the health or safety of a worker or other person arising from a psychosocial hazard.

Notably, the model provisions cast a broad net and will require consideration of not only the physical work environment but also:

• How and when work is undertaken – this could impact job design, workloads and modes in which teams interact.
• Behaviours in the workplace – some behaviour giving rise to particular hazards and risks will be readily apparent, but there will be some individuals or parts of the business where a deeper analysis will be required to identify behaviours (and practices) presenting psychosocial risk.
• Instruction, training and supervision – ensuring workers are provided with the necessary information and skills to address issues or raise concerns, and ensuring managers can appropriately monitor their teams for psychosocial hazards and risks and respond to issues raised. 

  

Control measures are to be determined by reference to all relevant matters, including:

• The duration, frequency and severity of the exposure.
• How the psychosocial hazards may interact or combine.
• Work designs and systems, including job demands and tasks and how work is managed, organised and supported.
• Design and layout, and environmental conditions, of the workplace and any accommodation provided by the PCBU.
• Plant, substances and structures at the workplace.
• Workplace interactions or behaviours.
• Information, training, instruction and supervision provided to workers.

Status of the changes in each jurisdiction

A number of the changes to the model WHS laws have already been adopted by some jurisdictions in the same or similar terms. A summary of the position of each State/ Territory on the key amendments can be found here.

It will be necessary to monitor whether the amendments will be adopted by the Commonwealth and all States and Territories.

What does your organisation need to do?

We recommend that you:

• Monitor changes to WHS laws in the States/Territories where your organisation operates – and ensure officers are kept up to date about the changes (given part of their due diligence obligation is to have an up-to-date knowledge of WHS matters).
• Review your organisation’s approach to managing psychosocial risks in the workplace, in light of the current guidance material and anticipated regulations.
• Ensure workers and managers are given sufficient instruction, training and supervision on the management of psychosocial risk, and systems are established them report and respond to risks identified in the workplace.
• Review any insurance or indemnity arrangements in place that purport to cover liability for WHS penalties.
  
• Ensure your organisation’s WHS systems enable compliance with the Regulator’s current enforcement powers, and accommodate any changes implemented.

Deanna McMaster is a Partner, Brisbane; Harriet Eager is a Partner, Sydney; and Dimity Leahy is a Special counsel at MinterEllison. This is a slightly edited version of an  article that was first published on 24.06.22 by MinterEllison and has been republished with permission. You can read the original article here.