Safe Work Australia has released the final report of its independent review of the model Work Health and Safety (WHS) laws, presenting the federal government and each of the state WHS ministers with 34 recommendations for change.

In keeping with the states’ commitment to regularly review the model WHS laws, adopted in various forms in each jurisdiction, Safe Work Australia appointed former executive director of SafeWork SA, Marie Boland, to independently review the laws in 2018.

A press statement releasing the final report on Monday 25 February said the review was conducted in consultation with stakeholders including regulators, businesses and the general public; that the laws were “operating as intended”; and that the 34 recommendations would “enhance the WHS framework”.

“The model WHS laws are largely operating as intended but I am recommending some changes to provide clarity and to drive greater consistency in the application and enforcement of the laws across jurisdictions,” Ms Boland said in the Safe Work Australia statement.

“The three-tier legal framework is widely supported, and there is a view that it is sufficiently flexible to accommodate the evolving nature of work and changing work relationships.”

Recommendations 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.

Industrial manslaughter should be universal

One of the most radical aspects of the report is the recommendation that an industrial manslaughter charge be inserted into the model WHS Act, which would see it adopted in all states.

Recommendation 23b says the new offence should provide for “gross negligence causing death” and that Safe Work Australia “should work with legal experts to draft the offence and include consideration of recommendations to increase penalty levels (Recommendation 22) and develop sentencing guidelines (Recommendation 25).”

Industrial manslaughter has been a controversial concept, largely rejected as unnecessary and divisive by the business community but strongly backed by the union movement.

The Australian Council of Trade Unions (ACTU), for example, solely focused on industrial manslaughter in its public response to the report yesterday, arguing the current system “provides no deterrent for unsafe workplace practices which kill more than 200 workers in Australia every year”.

AMMA’s view, consistent with other business representative groups, is that there are existing, appropriate avenues within Australian criminal law for individuals to be prosecuted for gross negligence that has led to a workplace death.

There is no evidence that the current legislative framework is ineffective in dealing with serious offences, nor is there any evidence that imposing greater criminal liability on individuals for workplace accidents would have a positive impact on safety outcomes.

It is AMMA’s position that continuous improvement in safety outcomes in the resources and energy industry, which already has an exceptional record, is best driven by cooperative, proactive initiatives to improve safety culture, not an adversarial legal approach seeking to attribute blame and liability after an accident occurs.

Industrial manslaughter has already been introduced in the state WHS laws in Queensland and the Australian Capital Territory. The Labor governments of Victoria and New South Wales have pledged to introduce them in 2019.

Expanding union workplace entry

A second major area of employer concern is the recommendation that union officials should be free to enter workplaces to assist a health and safety representation (HSR) without being required to hold a valid entry permit under workplace relations laws.

Recommendation 8 of the report argues that:

Safe Work Australia work with relevant agencies to consider how to achieve the policy intention that a union official accessing a workplace to provide assistance to an HSR is not required to hold an entry permit under the Fair Work Act or another industrial law, taking into account the interaction between Commonwealth, state and territory laws.

AMMA has consistently advocated for appropriate and balanced union workplace entry rights, including when applying to safety laws.

In September 2018 submission on the Work Health and Safety (WHS) harmonisation process in Western Australia, AMMA highlighted a proposed separate right of entry regime under the new WHS Act was unnecessary and would have unintended consequences.

“The right of entry regime recommended (for the WHS Act) would create conflict and confusion given the extensive right of entry provisions that already exist under both state and federal industrial law,” AMMA said.

“Further, adopting this regime would bring with it an unacceptable risk – a risk that has been realised in jurisdictions where safety laws allow for union right of entry – of trade unions abusing right of entry privileges, and union officials using safety laws as a ruse to access workplaces in support of their industrial or political interests.”

AMMA will oppose any measures that seek to bolster the influence of third parties such as trade unions over safety matters, often at the expense of independent specialist WHS regulators.

Specific concerns of resources and energy employers include safety, security and logistical issues associated with allowing individuals to access major mining and hydrocarbons facilities without prior notice.

The final report of Safe Work Australia’s independent review is now with WHS ministers for consideration. Their response is expected later in the year.

Read the full report here.

For more information or to provide a position on any of the report’s recommendations, contact [email protected].