The WHS Independent Review has recently been completed with 34 recommendations made by the Review.
Caroline Graham, WHS Manager from Safe Ag Systems has read the review to identify recommendations that may require consideration in your safety system.
1. Increase penalty levels
- The review noted that the penalties in the Model WHS Act have not been amended since inception. It noted that some states apply a penalty unit while other states apply monetary values only. It was also noted that if the penalty for a Category 1 offence had increased by consumer price index then the Category 1 offence of $3,000,000 for a body corporate would now be around $5,727,000 (an increase of 90.9%)
- The review recommends that penalty levels should be increased in order to retain their real value as a deterrent. It is stated that penalty levels in the model WHS Act could be increased by 50 per cent as an approximate halfway point to the 90.9 per cent increase in the Commonwealth penalty unit value since 2011.
2. Introduction of industrial manslaughter to the WHS Act
The review recommends that the model WHS Act is amended to provide for a new offence of industrial manslaughter. The offence should provide for gross negligence causing death and include the following:
- The offence can be committed by a PCBU and an officer as defined under s 4 of the model WHS Act.
- The conduct engaged in on behalf of a body corporate is taken to be conduct engaged in by the body corporate.
- A body corporate’s conduct includes the conduct of the body corporate when viewed as a whole by aggregating the conduct of its employees, agents or officers.
- The offence covers the death of an individual to whom a duty is owed.
Safe Work Australia should work with legal experts to draft the offence and include consideration of recommendations to increase penalty levels and develop sentencing guidelines.
3. Removal of right to seek indemnity from insurer
The review recommends that duty holders should be outlawed from purchasing insurance for a penalty in a WHS matter on the basis that it goes against public policy and the purpose of the legislation.
Specifically, the Review stated that the WHS Act should be amended (similarly to the New Zealand Health and Safety Work Act 2015) to make it an offence to:
- enter into a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under the model WHS Act;
- provide insurance or a grant of indemnity for liability for a monetary penalty under the model WHS Act; and
- take the benefit of such insurance or such an indemnity.
The author of the review noted that there was no suggestion that companies and officers should be precluded from accessing insurance or indemnity for legal costs incurred in defending a prosecution. The recommendation is to outlaw the ability for insurance to pay penalties where there are court findings that the model WHS laws have been breached.
4. Clarify the definition of a PCBU
The Review noted that the term PCBU was becoming widely accepted among larger businesses but that clearer definitions of PCBU needed to be provided for small business and other entities. The following clarity is provided.
A Person conducting a business or undertaking (PCBU) as defined under s 5 of the model WHS Act can be;
- a company;
- an unincorporated body or association;
- a sole trader or self-employed person;
- a not-for-profit organisation;
- a local council;
- a government department or agency;
- a school;
- a franchise;
- in some circumstances a volunteer organisation;
- Individuals who are in a partnership that is conducting a business will individually and collectively be a PCBU.
5. Are you an independent contractor or do you use contractors?
The review noted that Safe Work Australia considers additional guidance is needed to clarify responsibilities where an independent contractor is engaged to carry out work. Specifically when, how and to what extent PCBUs must consult, co-operate and co-ordinate with each other about concurrent duties. Clarity is required including a detailed explanation of the s 46 duty to consult horizontally, including matters such as the triggers for consultation, the information to be provided, documentation and reporting, issue resolution and how horizontal consultation interacts with consultation with workers.
The existing model Code of Practice: Work health and safety consultation, co-operation and co-ordination provides some guidance for PCBUs on how to meet their duties to consult with other duty holders, but it predominantly focuses on consultation with workers.
The review recommends that a new model Code be developed that clearly demonstrates how the principles apply to s 46, the Duty to consult with other Duty Holders.
6. Can I afford to do something?
The review noted that; “a PCBU may determine that they cannot financially afford to implement a control measure related to a particular risk. The costs of implementing a particular control may include costs of purchase, installation, maintenance and operation of the control measure and any impact on productivity as a result of the introduction of the control measure. A calculation of the costs of implementing a control measure should take into account any savings from fewer incidents, injuries and illnesses, potentially improved productivity and reduced turnover of staff”.
The review states that if a PCBU cannot afford to implement a control measure that should be implemented, after following the weighing up process set out in section 18 of the WHS Act, they should not engage in the activity that gives rise to that risk.
7. Duty related to consultation and communication
The review noted consideration of what constitutes consultation in the model WHS Act. The laws make it clear that consultation should be about more than merely sharing information but should be a two-way conversation in which workers have a reasonable opportunity to participate in the resolution of WHS matters at a workplace.
The review recommends that the PCBU must demonstrate compliance with their obligation to undertake genuine consultation with workers. Examples of more difficult consultation situations included, fly-in fly-out workers, people working alone, seasonal workers and workers with English as their second language.
8. Incident notification
Section 35 of the model WHS Act defines the kinds of workplace incidents that must be notified to the regulator. A ‘notifiable incident’ is an incident involving:
- the death of a person
- ‘serious injury or illness’ of a person, which is defined as including an injury or illness requiring a person to have immediate treatment as an inpatient, or immediate treatment for certain identified injuries, or medical treatment within 48 hours of exposure to a substance, or
- a ‘dangerous incident’, which exposes a worker or other persons to serious risks to their health and safety from immediate or imminent exposure to the incidents listed in the section.
The model WHS laws require:
- the PCBU to ensure the regulator is notified immediately after becoming aware a notifiable incident has occurred
- written notification within 48 hours of the request if the regulator asks for it, and
- the incident site to be preserved until an inspector arrives or directs otherwise (subject to some exceptions).
Failing to report a ‘notifiable incident’ is an offence and penalties apply.
The review considers that there is considerable confusion about a PCBU’s mandatory incident reporting requirements and recommends;
- that the incident notification provisions require further assessment with a view to amending the model WHS Act
- provision for a notification trigger for psychological injuries
- capture relevant incidents, injuries and illnesses that are emerging and re-emerging from new work practices, industries and work arrangements.
9. Request for prosecution
The model WHS Act requires that legal proceedings can only be brought by a WHS regulator or an inspector acting with the written authorization of the regulator or the Dept of Public Prosecution
Allowing only these parties to prosecute was seen as a means of improving the consistency of enforcement procedures.
However, s 231 of the model WHS Act does provide for a person to request that the regulator bring a prosecution in response to a Category 1 or Category 2 offence if no prosecution has been brought within six to 12 months of the occurrence. The review agrees that s231 remains. As such the PCBU must ensure evidence is retained to demonstrate compliance where a person requests the regulator bring a prosecution within this period.