In May 2021, Ministers responsible for work health and safety (WHS) from the Commonwealth and each state and territory considered the response to the Review of the model WHS laws in the Decision Regulatory Impact Statement.
WHS ministers agreed that 35 of the Review recommendations would be implemented and that 4 recommendations were either out of scope or that the status quo should remain. All of the agreed recommendations have been completed.
The details of their implementation are set out in the table below
Completed
| Agreed Recommendation | Details of implementation |
|---|---|
1: Review the model WHS Regulations and model Codes of Practice 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. | The Agency published a pilot tool for duty holders in the agriculture industry and collected feedback from users. The Agency provided an update on the uptake and development of the agriculture pilot tool at the December 2022 Safe Work Australia (SWA) Members’ meeting. SWA Members agreed that the recommendation was complete. The Agency will roll out the tool to other industries, including construction. |
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 measure to manage those risks. | The updated model WHS Regulations incorporating this amendment were published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
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. | SWA Members agreed to Principles to support and guide Members in identifying, assessing and responding to new and emerging WHS issues at their meeting on 7 April 2022. |
4: Clarify that a person can be both a worker and a PCBU Safe Work Australia update existing guidance material to clarify the operation of the model WHS Act in a contractual chain. | The WHS duties in a contractual chain factsheet was published on the Safe Work Australia website on 5 April 2022. |
5: Develop a new model Code of Practice on the principles that apply to duties Safe Work Australia 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:
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). | In April 2022, SWA Members agreed the Agency would develop a suite of guidance material to help PCBUs understand how they can meet the obligations associated with the ‘principles’ of the model WHS Act. In May 2023, fact sheets providing information about the principles applying to duties (ss 13-17 of the model WHS Act) and the s 46 consultation duty were published on the Safe Work Australia website on the new ‘Principles that apply to work health and safety duties’ webpage. The Agency has also published three case studies on that webpage. One more case study is being finalised for imminent publication once SIG-WHS feedback is received. |
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. | The varied model Code of Practice: Work health and safety consultation, cooperation and coordination has been updated to include these practical examples. It was published on the SWA website on 7 March 2022. |
7a: New arrangements for Health and Safety Representatives (HSRs) and work groups in small businesses 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 of Practice was published on the SWA website 7 March 2022. |
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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
9: Inspectors to deal with safety issue when cancelling a Provisional Improvement Notice (PIN) 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 Provisional Improvement Notice (PIN) | The amended Worker Representation and Participation Guide was published on the SWA website on 6 June 2022. |
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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
11: Provide examples of HSC constitutions, agendas and minutes 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 health and safety committee (HSC) constitutions, agendas and minutes. | The amended Worker Representation and Participation Guide was published on the SWA website on 6 June 2022. |
12: Update guidance on issue resolution process and participants Update the Worker Representation Guide to include:
| The amended Worker Representation and Participation Guide was published on the SWA website on 6 June 2022. |
13: Resolving outstanding disputes after 48 hours Amend the model Work Health and Safety Act to provide for:
appeal rights from decisions of the court or tribunal to apply in the normal way. | At their 7 April 2022 meeting, SWA Members agreed to maintain the status quo on the basis that the current provisions and jurisdictional processes are working as intended. The Chair wrote to WHS ministers on 2 May 2022 advising of this outcome. |
15: Remove 24-hour notice period for entry permit holders Amend the model Work Health and Safety Act to retain previous wording in s 117 of the model WHS Act. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement the amendments in their jurisdiction. |
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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
20: Review incident notification provisions Review the incident notification provision in the model WHS Act with the objective of ensuring that:
| The review was completed in September 2022. Consultation on the options for updating the incident notification requirements was carried out throughout 2023, including a public consultation period. In June 2024, WHS ministers agreed to recommendations to improve the incident notification provisions in the model WHS Act. Amendments to the model WHS Act are now being drafted. |
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. | At the December 2022 meeting, SWA Members agreed the review was complete. Members considered next steps in response to the findings of the review in June 2023 and this work is currently being progressed. |
22: Increase penalty levels
| At the June 2022 meeting, SWA Members agreed to increase monetary penalties for offences in the model Act by 39.03% and insert a mechanism to increase penalties each year to reflect national CPI. The updated model WHS Act and model WHS Regulations incorporating these amendments were published on the SWA website on 27 July 2023. The Chair wrote to WHS ministers on 21 July 2023 providing a copy of the amendments and asking them to implement in their jurisdiction. The model WHS Act and model WHS Regulations have been updated. |
23a: Enhance Category 1 offence to include gross negligence as a fault element 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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
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. | The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
25: Consistent approach to sentencing 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 complete and was considered by Safe Work Australia Members in September 2022. |
26: Prohibit insurance for WHS fines Amend the model WHS Act to make it an offence to:
| The updated model WHS Act incorporating this amendment was published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
27: Clarify the risk management process in the model WHS Act Safe Work Australia to further scope this issue to inform guidance, particularly for small business, on the risk management process and the application of the hierarchy of controls. | At the December 2022 Members’ meeting, SWA Members agreed that the Agency had completed scoping the issues identified in this recommendation. Noting the findings of consultation with small business representatives, particularly in respect of the hierarchy of controls, Members agreed that developing further risk management guidance is not the solution to equipping businesses to undertake better risk management. The Agency will continue efforts to improve the accessibility, and promotion of, existing SWA guidance. |
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. | The updated model WHS Regulations incorporating this amendment were published on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
29b: Develop an intuitive, interactive tool to support the completion of fit-for-purpose Safe Work Method Statements (SWMS). Safe Work Australia develop an intuitive, interactive tool to assist in the effective and efficient completion of fit-for-purpose SWMSs. | Safe Work Australia Members agreed to publish the interactive tool in December 2023. |
30: Photographic ID on White Cards Amend the model WHS Regulations to require photographic ID on White Cards consistent with high-risk work licences. | At the September 2022 Members’ meeting, SWA Members agreed not to amend the model WHS Regulations to require photographic ID on white cards. However, amendments to the model WHS Regulations to permit digital authorisations are currently being progressed. |
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. | SWA Members decided references to Standards will be retained in the model WHS laws. |
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. | The updated model WHS Regulations incorporating this amendment were published on the SWA website on 6 June 2022. The Chair wrote to WHS ministers on 2 May 2022 providing a copy of the amendments and asking them to implement in their jurisdiction. |
32: Review MHF Regulations
| A discussion paper on issues with the MHF Regulations was published for public consultation, which closed in November 2022.
|
33: Review crane licence classes
| In 2022, Safe Work Australia conducted the review of crane licence classes, which included public consultation and the publication of a discussion paper.
|
34a: Improving the quality of asbestos registers Safe Work Australia to publish additional guidance to improve the quality of asbestos registers. | Guidance material Asbestos registers at the workplace was published on the SWA website on 5 September 2023. |
| 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. | At their June 2024 meeting, SWA Members agreed recommendation 34b could be considered complete, noting a broad review of the asbestos regulations will occur under the Asbestos National Strategic Plan 2024-2030, and the policy issues raised in the competent persons consultation will be considered as part of that review. |
Supporting Information
- Model WHS Act
- Guide to the model WHS Act
- Explanatory Memorandum - model WHS Act
- Model WHS Regulations
- Guide to the model WHS Regulations
- Explanatory statement - model WHS Regulations
- The meaning of 'person conducting a business or undertaking'
- The health and safety duty of an officer under section 27
- The meaning of 'reasonably practicable'
- Discriminatory, coercive or misleading conduct
- National Compliance and Enforcement Policy
- The development of model WHS Laws