Implementation of WHS ministers’ agreed response to the Review of the model WHS laws

Implementation of WHS ministers’ agreed response to the Review of the model WHS laws.

Ministers responsible for work health and safety (WHS) from the Commonwealth and each state and territory met on 20 May 2021. The meeting considered a range of WHS matters including the response to the Review of the model WHS laws. 

An implementation status update to WHS ministers’ agreed response to the Review of the model WHS laws is provided below. 

Complete 

These recommendations have been finalised with the amendments to the model WHS Act and model WHS Regulations.
 

          Model Law Review Recommendation Agreed outcome 2022 Amendments to the model WHS laws
2 Make regulations dealing with psychological health
Amend the model WHS Regulations to deal with how to identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks.
 
Implement the Model Law Review recommendation.

The model WHS Regulations have been amended to deal with psychosocial risks. 

New provisions define psychosocial hazards. Regulations 55A-55D clarify duties in relation to psychosocial hazards, including requiring PCBUs to have regard to all relevant matters when determining the control measures to implement to manage psychosocial hazards.
 

7b Work group is negotiated with proposed workers
Amend the model WHS Act to provide that a work group is negotiated with workers who are proposed to form the work group
 
Implement the Model Law Review recommendation. A minor technical amendment to Section 52 to clarify that work groups are negotiated and agreed between the PCBU and the workers who are proposed to form the work group or their representatives. The Worker representation and participation guide has been updated to reflect this amendment.
10

HSR choice of training provider

Amend the model WHS Act to make it clear that for the purposes of s 72:

  • the HSR is entitled to choose the course of training, and if the PCBU and HSR cannot reach agreement on time off for attendance or the reasonable costs of the training course that has been chosen by the HSR, either party may ask the WHS regulator to appoint an inspector to decide the matter.
Implement the Model Law Review recommendation.

Section 72 has been amended so that a health and safety representative (HSR) or deputy HSR is now entitled to attend an HSR course of their choice, as long as it is a course that’s approved by the regulator and that the HSR is entitled under the regulations to attend.


If the PCBU and the HSR cannot reach agreement on time off for attendance or the reasonable costs of the training course chosen by the HSR, either party may ask the regulator to appoint an inspector to decide the matter. The Worker representation and participation guide has been updated to reflect this amendment.

15 Remove 24-hour notice period for entry permit holders
Amend the model WHS Act to retain previous wording in s 117 of the model WHS Act.
 
Implement the Model Law Review recommendation.

A WHS permit holder is no longer required to provide notice of their proposed entry and suspected contravention at least 24 hours before, but not more than 14 days before, the proposed entry and during the usual working hours at that workplace. 

A WHS permit holder must however provide notice of their proposed entry and suspected contravention as soon as practicable after entering the workplace.
 

16 Align the process for the issuing and service of notices under the model WHS Act to provide clarity and consistency
Amend the model WHS Act to align the service of notices provisions under s 155 and s 171 with those in s 209 of the model WHS Act dealing with improvement, compliance and non-disturbance notices.
 
Implement the Model Law Review recommendation. Sections 155 and 171 were amended to align the service of notices with those under s 209 (improvement compliance and non-disturbance notices). 
17 Provide the ability for inspectors to require production of documents and answers to questions for 30 days after the day they or another inspector enter a workplace
Amend the model WHS Act to provide that, instead of being limited to the inspector who enters (or has entered) a workplace, the powers to require production of documents and answers to questions can be exercised by any inspector within 30 days following an inspector’s entry to that workplace.
 
Implement the Model Law Review recommendation. Section 171 was amended to enable inspectors, within 30 days of any inspector’s entry to the workplace, to require the production of documents or answers to questions related to the purpose of entry within a specified period or require a person to attend before the inspector at a specified time to answer questions including via audio or audio-visual link.
18 Clarify that WHS regulators can obtain information relevant to investigations of potential breaches of the model WHS laws outside of their jurisdiction
Amend the model WHS Act to clarify that the regulator’s power to obtain information under s 155 has extraterritorial application.
 
Implement the Model Law Review recommendation. Section 155 was amended to clarify that a WHS regulator’s power to obtain information has extra-territorial application. 
19 Enable cross-border information sharing between regulators
Amend the model WHS Act to include a specific power enabling regulators to share information between jurisdictions in situations where it would aid them in performing their functions in accordance with the model WHS laws.
 
Implement the Model Law Review recommendation. A new provision, Section 271A, clarifies the circumstances in which a WHS regulator or a person authorised by the regulator, may disclose the information, or give access to a document to any other person, including a corresponding regulator, or otherwise use the information or document.
23a Enhance Category 1 offence
Amend s 31 of the model WHS Act 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. 
 
DRIS Recommendation – Implement Model Law Review Recommendation 23a only – include gross negligence as a fault element in the Category 1 offence. The Category 1 offence in Section 31 now includes gross negligence as a fault element. The prosecution must prove either the fault element of gross negligence or recklessness, in addition to proving the physical elements of the offence.
24 Improve WHS regulator accountability for investigation progress
Amend the model WHS Act to remove the 12-month deadline for a request under s 231 that the regulator bring a prosecution in response to a Category 1 or Category 2 offence and to ensure ongoing accountability to the person who made the request until a decision is made on whether a prosecution will be brought. 
 
DRIS Recommendation – Amend the model WHS Act to:
  • extend the 12-month deadline for a person to request that a WHS regulator bring a prosecution in response to a Category 1 or Category 2 offence under s 231, for a period to be determined in consultation with jurisdictions, and
  • require a WHS regulator to provide updates to the person who made the request until a decision is made on whether a prosecution will be brought.

Section 231 was amended to improve WHS regulator accountability for investigations by extending the timeframes in which a person can request that a WHS regulator bring a prosecution in response to a Category 1 or 2 offence. 

If an investigation is still ongoing, the WHS regulator must provide written updates on the progress of the investigation every three months until the investigation is complete.
 

26 Prohibit insurance for WHS fines
Amend the model WHS Act 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.
Implement the Model Law Review recommendation.

There is now a prohibition on insurance and other similar arrangements that cover the costs of a monetary fine or penalty imposed on a person under the model WHS Act. 


A person cannot enter into an insurance contract or other arrangement providing insurance or an indemnity, or take the benefit of an insurance contract, other arrangement or indemnity to cover all or part of a liability for a monetary penalty. 


The model WHS Act also makes void any insurance contract or other arrangement to the extent that it purports to cover a person for all or part of a liability for a monetary penalty under the model WHS Act.

28 Improved recording of amusement device infringements and operator training
Amend regulation 242 of the model WHS Regulations to ensure that details of statutory notices issued by any WHS regulator and evidence of operator training and instruction are included in the device’s log book.
 
Implement the Model Law Review recommendation.

The revised regulations include new requirements for improved record keeping and operator training for amusement devices and passenger ropeways.

Competent persons are now responsible for storage, or supervising storage, maintenance, testing, inspection and conducting a detailed annual inspection of amusement devices and passenger ropeways.

The log book must now contain a wider range of information, including any statutory notices issued, maintenance records, operator details as well as instruction, training, daily checks and operation with and without passengers. The log book, operating and maintenance manuals must be kept with the amusement device and handed over if control of the device is relinquished.

31b 31b: Compliance with Standards not mandatory unless specified
Amend regulation 15 of the model WHS Regulations (‘Reference to Standards’) to make it clear that compliance with Standards is not mandatory under the model WHS laws unless this is specifically stated.
 
DRIS Recommendation – Implement both recommendation 31a and recommendation 31b of the Model Law Review. The revised regulations provide additional guidance on the circumstances in which there is an obligation to comply with the terms of a Standard referred to in the regulations and includes a note with an example to assist readers.


In addition to amendments to the model WHS laws, a number of Review recommendations involved varying existing or developing new guidance material or model Codes of Practice have also been finalised.

          Model law recommendation Agreed outcome Implementation outcome
4 Clarify that a person can be both a worker and a PCBU
Amend s 5(4) of the model WHS Act to make clear that a person can be both a worker and a PCBU, depending on the circumstances.

 
DRIS Recommendation – Safe Work Australia update existing guidance material to clarify the operation of the model WHS Act in a contractual chain.

In April 2022, Safe Work Australia published a new factsheet regarding WHS duties in a contractual chain to assist workers and PCBUs to understand their duties arising under the model WHS laws and examples of how contractual relationships fit within the model WHS framework.

6 Provide practical examples of how to consult with workers
Update the model Code: Work health and safety consultation, cooperation and co-ordination to include practical examples of how meaningful consultation with workers can occur in a range of traditional and non-traditional settings.

 
Implement the Model Law Review recommendation. The varied model Code Work health and safety consultation, cooperation and coordination was published in March 2022.
7a

New arrangements for Health and Safety Representatives (HSRs) and work groups in small businesses
Amend the model WHS Act to provide that, where the operations of a business or undertaking ordinarily involves 15 workers or fewer and an HSR is requested as per the requirements of the model WHS laws, the PCBU will only be required to form one work group for all workers represented by one HSR and a deputy HSR unless otherwise agreed between the workers and the PCBU.

DRIS Recommendation – Provide practical examples of work group and HSR arrangements in small businesses in the existing model Code: Work health and safety consultation, cooperation and coordination with the aim of clarifying how the laws can be applied, and reducing perceived complexity. The varied model Code Work health and safety consultation, cooperation and coordination was published in March 2022.
9 Inspectors to deal with safety issue when cancelling a Provisional Improvement Notice (PIN)
Amend the model WHS Act to provide that, if an inspector cancels a PIN for technical reasons under s 102 of the model WHS Act, the safety issue which led to the issuing of the PIN must be dealt with by the inspector under s 82 of the model WHS Act.

 
DRIS Recommendation – Safe Work Australia to review and amend the Worker Representation and Participation Guide to clarify how WHS issues should be dealt with when an inspector is reviewing a PIN.

Section 4.1 of the Worker Representation and Participation Guide has been updated including to clarify what options are available if there are still concerns that a WHS issue remains following the review of a PIN. The updated Guide was published in June 2022.

11 Provide examples of health and safety committee (HSC) constitutions, agendas and minutes
Update the model Codes and guidance with examples of HSC constitutions, agendas and minutes.

 
DRIS Recommendation – Safe Work Australia to update the model Code: Work health and safety consultation, cooperation and coordination, and the Worker representation and participation guide with examples of HSC constitutions, agendas and minutes.

The varied model Code Work health and safety consultation, cooperation and coordination was published in March 2022.

The Worker Representation and Participation Guide has been updated to include these examples. The updated Guide was published in June 2022.
 

12

Update guidance on issue resolution process and participants

Update the Worker Representation and Participation Guide to include:

  • practical examples of how the issue resolution process works, and
  • a list of the various representatives entitled to be parties in relation to the issues under s 80 of the model WHS Act as well as ways of selecting a representative and informing the other parties of their involvement.

 
Implement the Model Law Review recommendation.

Section 7 of the Worker Representation and Participation Guide has been updated to clarify the range of representatives a party to an issue resolution process may seek to involve, and how they might go about this. 

Practical examples of issue resolution have been included at Appendix C to demonstrate how issue resolution might be applied across various industries and in a range of small, medium and large businesses.
 

13

Resolving outstanding disputes after 48 hours

Amend the model WHS Act to provide for:

a.    disputes under ss 82 and 89 of the model WHS Act to be referred to the relevant court or tribunal in a jurisdiction if the dispute remains unresolved 48 hours after an inspector is requested to assist with resolving disputes under the default or agreed procedures and with cease work disputes

b.    a PCBU, a worker, an HSR affected by the dispute or any party to the dispute to notify the court or tribunal of the unresolved issue they wish to be heard

c.    the ability for a court or tribunal to exercise any of its powers (including arbitration, conciliation or dismissing a matter) to settle the dispute, and

d.    appeal rights from decisions of the court or tribunal to apply in the normal way.
 

DRIS Recommendation – Safe Work Australia to further scope the problem identified in Recommendation 13 of the Model Law Review. At their 7 April 2022 meeting, Safe Work Australia Members agreed to maintain the status quo on the basis that the current provisions and jurisdictional processes are working as intended.

 

In Progress

  Model Law Review Recommendation Agreed outcome
1

Review the model WHS Regulations and model Codes 

Review the model WHS Regulations and model Codes against agreed criteria on the purpose and content of the second and third tiers of the model WHS laws as they relate to the seven priority industries in the Australian Work Health and Safety Strategy 2012-2022.

DRIS Recommendation – Safe Work Australia develop a tool to assist duty holders in priority industries to identify the regulations that may apply to their business or undertaking.

A pilot of a tool for duty holders in the agriculture industry has commenced.  

3

Continuously assess new industries, hazards and working arrangements 

Safe Work Australia develop criteria to continuously assess new and emerging business models, industries and hazards to identify if there is a need for legislative change, new model WHS Regulations or model Codes.

Implement the Model Law Review recommendation. 
SWA has already begun preliminary work on this recommendation as agreed by WHS Ministers.
5

Develop a new model Code on the principles that apply to duties

Develop a model Code to provide practical guidance on how PCBUs can meet the obligations associated with the principles contained in ss 13–17 (the Principles), including examples of:

  • the application of the Principles to labour hire, outsourcing, franchising, gig economy and other modern working arrangements, and
  • processes for PCBUs to work co-operatively and cohesively to discharge their duties (in the context of the duty to consult, co-operate and co-ordinate with other duty holders—s 46 of the model WHS Act.
DRIS Recommendation – Develop a model Code or other practical guidance on how PCBUs can meet the obligations associated with the principles contained in ss 13-17 (the Principles), including examples of:
  • The application of the Principles to labour hire, outsourcing, franchising, gig economy and other modern working arrangements, and
  • Processes for PCBUs to work cooperatively and cohesively to discharge their duties (in the context of the duty to consult, cooperate and coordinate with other duty holders – s46 of the model WHS Act).
20

Review incident notification provisions

Review incident notification provisions in the model WHS Act to ensure they meet the intention outlined in the 2008 National Review, that they provide for a notification trigger for psychological injuries and that they capture relevant incidents, injuries and illnesses that are emerging from new work practices, industries and work arrangements. 

DRIS Recommendation – Review the incident notification provision in the model WHS Act with the objective of ensuring that:
  • the incident notification provisions meet the intention outlined in the 2008 national review,
  • the incident notification provisions capture relevant incidents, injuries and illnesses that are emerging from new work practices, industries and work arrangements; and
  • WHS regulators have appropriate visibility of work-related psychological injuries and illnesses.
SWA has reported to Safe Work Australia Members on its review of the incident notification provisions. Safe Work Australia Members agreed to consider broader issues of regulator visibility of WHS incidents (beyond the current incident notification provisions).
21

Review the National Compliance and Enforcement Policy (NCEP)

Review the NCEP to include supporting decision-making frameworks relevant to the key functions and powers of the WHS regulator to promote a nationally consistent approach to compliance and enforcement. 

Implement Model Law Review recommendation.

SWA has commenced the review of the NCEP.

22

Increase penalty levels

  • Amend the penalty levels in the model WHS Act to reflect increases in consumer price index and in the value of penalty units in participating jurisdictions since 2011, and
  • Review the increased penalty levels as part of future reviews of the model WHS Act and model WHS Regulations to ensure they remain effective and appropriate.

DRIS Recommendation – Increase the penalty levels in the model WHS Act and review penalty levels as part of future reviews of the model WHS Act.

Ministers also agreed to further consider significant increases to penalties under the model WHS laws in relation to Category 1 offences.

The review of penalty levels is underway.
 

25

Consistent approach to sentencing

Safe Work Australia work with relevant experts to develop sentencing guidelines to achieve the policy intention of Recommendation 68 of the 2008 National Review. As part of this process, any unintended consequences due to the interaction of local jurisdictional criminal procedure and sentencing legislation should also be considered. 

DRIS Recommendation – Safe Work Australia, working with relevant experts, will undertake a review into the feasibility of developing national WHS sentencing guidelines.

A review into the feasibility of sentencing guidelines is underway.

27

Clarify the risk management process in the model WHS Act

Amend the model WHS Act to clarify the risk management process by including a hierarchy of controls (consistent with regulation 36) and making any corresponding amendments necessary to the model WHS Regulations.

DRIS Recommendation – Safe Work Australia to further scope this issue to inform the development of guidance, particularly for small business, on the risk management process and the application of the hierarchy of controls.
29

29a: Add a Safe Work Method Statement (SWMS) template to the WHS Regulations

Amend the model WHS Regulations to prescribe a SWMS template. 

29b: Develop an intuitive, interactive tool to support the completion of fit-for-purpose SWMSs

Safe Work Australia develop an intuitive, interactive tool to assist in the effective and efficient completion of fit-for-purpose SWMSs.

DRIS Recommendation – Implement the Model Law Review recommendation 29b – develop an intuitive, interactive tool to support the completion of fit-for-purpose SWMSs.

The interactive tool is under development.
 

30

Photographic ID on White Cards

Amend the model WHS Regulations to require photographic ID on White Cards consistent with high-risk work licences.

DRIS Recommendation – Additional work to be undertaken to gain a greater understanding of the nature and scope of the problems identified in the Model Law Review and determine whether the recommendation is the most appropriate mechanism to treat them.


The Agency has commenced consultation with key stakeholders to understand the nature and scope of the problems and potential solutions.

31

31a: Consider removing references to Standards in model WHS Regulations

Review the references to Standards in the model WHS laws with a view to their removal and replacement with the relevant obligations prescribed within the model WHS Regulations. 

DRIS Recommendation – Implement both recommendation 31a and recommendation 31b of the Model Law Review.

SWA has reviewed all references to Standards in the model WHS laws. A number of those Standards have been superseded and further work is progressing on whether the existing reference should be amended to refer to the new Standard.

32

Review MHF Regulations

Review the model WHS Regulations dealing with MHF, with a focus on administrative or technical amendments to ensure they meet the intended policy objective.

Implement the Model Law Review recommendation. 

SWA has already begun preliminary work on this recommendation as agreed by WHS Ministers.

33

Review crane licence classes

Review the high-risk work licence classes for cranes to ensure they remain relevant to contemporary work practices and equipment.

Implement the Model Law Review recommendation. 

SWA has convened a crane issues working group and commenced consultation on potential improvements to crane licensing.

34

34a: Improving the quality of asbestos registers

Amend the model WHS Regulations to require that asbestos registers are created by a competent person and update the model Codes to provide more information on the development of asbestos registers. 

34b: Competent persons in relation to asbestos

Review existing requirements for competent persons, including consideration of amendments to the model WHS Regulations to provide specific competencies for asbestos-related tasks or requirements for further guidance on the skills and experience required for all asbestos-related tasks. 

DRIS Recommendation – SWA to publish additional guidance to improve the quality of asbestos registers and implement Model Law Review recommendation 34b. 

Additional guidance on asbestos registers has been prepared by SWA and is being consulted on.
 

No action required

  Model Law Review Recommendation Agreed Outcome
8

Workplace entry of union officials when providing assistance to an HSR

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.

This recommendation was out of scope for WHS Ministers and was not considered.
14

Clarify court powers for cases of discriminatory or coercive conduct

Amend the model WHS Act to make it clear that courts have the power to issue declaratory orders in proceedings for discriminatory or coercive conduct.

DRIS Recommendation – Maintain the status quo.
23

23b: Industrial manslaughter

Amend the model WHS Act 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 Recommendation 22) and develop sentencing guidelines (Recommendation 25).
DRIS Recommendation – Implement Model Law Review Recommendation 23a only – include gross negligence as a fault element in the Category 1 offence.