Marie Boland’s Review of the Work Health and Safety Laws, Part 3: Safe Work Australia‘s Consultation Regulation Impact Statement
On 24 June 2019, Safe Work Australia released a Consultation Regulation Impact Statement (RIS) seeking feedback on the possible impacts of implementing the recommendations of the Marie Boland independent review of the model Work Health and Safety Laws final report (Report).
In February this year, Marie Boland (former Executive Director of SafeWork SA) delivered the Report which found the model WHS laws (the laws) are working as intended although further clarity was required to enhance the application of the laws across jurisdictions. As a result, the Report contained 34 recommendations for reform, some of which we have discussed in our previous article.
The Consultation RIS covers all 34 Report recommendations. However, Safe Work Australia has expressed interest in gathering feedback on 12 recommendations that have “more than a minor impact” on stakeholders, or that require further information and analysis including:
- introducing regulations dealing with psychological health;
- clarifying workplace entry of HSR assistants and WHS entry permit holders;
- providing HSRs with choice of training course;
- providing a process for resolving disputes about WHS issues;
- including gross negligence as an element of the Category 1 offence; and
- introducing an industrial manslaughter offence.
Industrial Manslaughter and enhancing the Category one offence
An earlier article on this blog, reported that several Australian States and Territories are responding to community concerns and are now exploring industrial manslaughter provisions for workplace deaths.
To address the Report’s recommendations concerning the introduction of an industrial manslaughter offence (Recommendation 23b) and an addition of ‘gross negligence’ to the risk-based category 1 offence (Recommendation 23a), the Consultation RIS proposes the following options:
- Option 1 – no amendment and continue to rely on the current offence provision.
- Option 2 – include gross negligence as a fault element in the Category 1 offence (recommendation 23a only) but without adding a separate industrial manslaughter offence.
- Option 3 – introduce an offence of industrial manslaughter (recommendation 23b only), without any changes to the current Category 1 offence. The fault element for Category 1 would remain recklessness.
- Option 4 – implement both recommendation 23a (gross negligence as a fault element in the Category 1 offence) and recommendation 23b (introducing the offence of industrial manslaughter).
Mental health and incident notification duties
Under the current laws, health and safety duties apply to both psychological and physical health.
The Report found that managing psychological health was a key concern for stakeholders. There was a widespread view that the laws inadequately provide for psychological health and safety, due to the absence of specific regulations for managing psychological risks and a lack practical guidance.
To address the need for a clear legislative framework to manage psychological health issues (Recommendation 2) the Consultation RIS proposes two options:
- Option 1 – not to amend the model WHS laws (psychosocial risks would continue to be regulated by the laws) as the existing duties are now supported by recently released guidance materials published by WHS regulators.
- Option 2 – to include requirements for managing psychosocial risks in the model WHS Regulations. This would be done by introducing express requirements for the identification and controls for psychological risks.
The Report also found the incident notification provisions in the laws are not operating as intended, as they do not capture all relevant incidents, particularly psychological injuries. It recommended a review be undertaken of the current incident notification provisions to ensure provision for a notification trigger for psychological injuries to capture relevant incidents, injuries and illnesses that are emerging from new work practices, industries and work arrangements (Recommendation 20). The Consultation RIS proposes that Safe Work Australia undertake this review and draw on the views of all impacted stakeholders.
Safe Work Australia is seeking submissions on how individuals and organisations may be affected by any of the proposed recommendations and options, and the consultation period closes on 5 August 2019. The feedback will be presented to WHS Ministers by the end of 2019.