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

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. 28 of the agreed recommendations have been completed.  The remaining 7 agreed recommendations are well progressed.

The details of their implementation are set out in the tables below including an implementation status update & indicative timing for the remaining 7 agreed recommendations.

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. 

A separate working group will be formed to consider expanding the tool to other industries.

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.

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:

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

  1. 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
  2. PCBU, a worker, a HSR affected by the dispute or any unresolved issue they wish to be heard
  3. 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

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 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. 

The Agency provided the final review outcomes to SWA Members in September 2022. SWA Members agreed the review is complete. 

The Agency has commenced a regulatory impact analysis of options for incident notification obligations in the model WHS Act.

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. 

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:

  • 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 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.

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.

In progress

Agreed Recommendation Current Status/Next Steps

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:

  • 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).

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. 

The Agency has commenced drafting guidance, including infographics and case studies to demonstrate the application of the principles in modern working arrangements, such as the gig economy.  Guidance will be developed and agreed through SWA’s usual governance processes. 

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.

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. 

Drafting instructions have been provided to the Parliamentary Counsel’s Committee. 

The Agency has received preliminary drafts of the amendments to increase penalties including a mechanism for annual increases to reflect national CPI and is continuing to work with PCC to finalise them. 

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. 

SIG-WHS agreed to the Agency's approach to developing an intuitive, interactive tool on 26 May 2022. The interactive tool is currently under development.

Once the Agency has completed development of the interactive tool, it will be progressed through SWA’s usual governance processes.

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.

A discussion paper on issues with the MHF Regulations was published for public consultation. Public consultation closed on 3 November 2022. 

SWA Members will consider the feedback from the consultation and agree on next steps at their March 2023 Members’ meeting.

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.

At the September 2022 SWA Members’ meeting, SWA Members agreed that changes to crane licensing were required.  

The Agency is currently undertaking regulatory impact analysis to consider regulatory and non-regulatory options to ensure crane licences remain relevant to contemporary work practices and equipment. 

34a: Improving the quality of asbestos registers

Safe Work Australia to publish additional guidance to improve the quality of asbestos registers. 

 The Agency has prepared draft guidance on asbestos registers, which will be considered by SIG-WHS in early 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. 

The Agency is developing a discussion paper on competent persons in relation to asbestos. 

The discussion paper will be released for public consultation in early 2023.

Supporting Information