In Short
- New WHS/OHS laws have increased compliance obligations for businesses.
- Fines and penalties are rising for safety breaches.
- Proactively addressing risks can protect your business and employees.
Tips for Businesses
Regularly review your workplace safety procedures and ensure compliance with WHS/OHS laws. Train employees on updated safety standards and take a proactive approach to identifying risks. This will help avoid penalties and keep your business safe from regulatory scrutiny.
Workplace health and safety officers play a crucial role in ensuring that their organisations and workers have current and relevant knowledge of work health and safety matters. This update will help you comply with your obligation to stay up to date with WHS matters and highlight some developments since June 2024.
Amendments to Legislation
Incident Notification Changes
Safe Work Australia has confirmed that it will begin the process of updating the incident notification obligations under the Model WHS Act for Persons Conducting a Business or Undertaking (PCBUs). This is to provide greater clarity and understanding for employers about their notification obligations.
While these amendments will not come into effect until 2025, they outline the types of incidents as notifiable if they ‘arise out of the conduct of the business or undertaking’. This includes:
- work-related or suspected work-related suicides or attempts of suicide of a worker. This also applies to suicide or attempted suicide of other people in relevant settings;
- violent incidents that occur within the workplace that may not result in a serious injury or illness but could put an individual’s psychosocial health and safety at risk;
- dangerous incidents that involve falls, electrical hazards and mobile plant;
- serious head injuries, crush injuries and bone fractures; and
- work-related injuries or illnesses that result in a worker being absent from work or likely to be absent from work for 15 or more consecutive calendar days due to a psychosocial or physical injury, illness or harm.
Preventing Sexual Harassment in Queensland
The new regulations in Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 in Queensland take effect from September 2024. This includes putting the onus on employers to manage the risk of sexual harassment in the workplace proactively.
Employers will also have an obligation to implement a written sexual harassment prevention plan to protect workers from early 2025. These plans must:
- identify risks within the workplace, control measures and consultation undertaken to develop the plan;
- contain information about how workers can make complaints;
- outline how the complaint will be investigated;
- set out the process that will be undertaken; and
- address how the relevant parties will be informed of the results.
As a business owner, you have a legal obligation to provide a safe workplace for your employees and customers. This free guide explains how.
Industrial Manslaughter
Several Australian jurisdictions have introduced or enhanced industrial manslaughter offences:
- New South Wales introduced offences carrying penalties of up to $20 million for corporations and 25 years’ imprisonment for an individual.
- Queensland has proposed in a bill to expand its existing offence to cover deaths of individuals beyond just workers.
- The Australian Capital Territory significantly increased maximum penalties, with the industrial manslaughter offence now attracting up to $18 million for bodies corporate.
- South Australia’s offence, carrying potential penalties of $18 million and 20 years’ jail, commenced on 1 July 2024
- Tasmania has proposed an offence with a 21-year maximum jail term and $18 million corporate fine in a bill recently passed by parliament.
On-the-spot WHS Fines in NSW
New South Wales expanded the range of offences for which on-the-spot fines can be issued, growing the number from around 200 to nearly 300 offences. The newly added offences cover breaches related to work environments, workplace facilities, first aid requirements, plant and structures, and hazardous chemicals.
Cases and Incidents
Earlier this year, the District Court of New South Wales came to a decision that increases clarity about the nature of an officer’s duty to exercise due diligence under WHS laws. An officer is a person who has significant decision-making abilities or financial control over a PCBU or a substantial part of a PCBU.
1. What Happened?
A worker, Christopher Herden, was struck and seriously injured by a forklift while working at a depot of Miller Logistics Pty Ltd in Tamworth, New South Wales.
SafeWork NSW prosecuted Miller Logistics for a breach of its primary health and safety duty under the Work Health and Safety Act 2011 (NSW). It also prosecuted Mitchell Doble, the sole director of Miller Logistics, for failing to exercise due diligence as an officer to ensure the company complied with its duties.
2. What Was the Outcome?
The court found Miller Logistics guilty of breaching its primary duty under the WHS Act. However, Mitchell Doble was acquitted of the charge of failing to exercise due diligence as an officer, as the court found that he had taken reasonable steps to ensure the company complied with its duties for the following key reasons:
- Doble had engaged a dedicated Compliance Manager responsible for work health and safety management since 2013. This was seen as Miller Logisitic’s primary resource for ensuring WHS compliance.
- There was no evidence that Doble had any reason to doubt the Compliance Manager’s competence or conscientiousness in carrying out WHS duties.
- While the Compliance Manager failed to mandate the separation of forklifts and pedestrians which led to the incident, this was considered a failure by Miller Logistics as the PCBU, not a personal failure by Doble.
- Evidence showed Doble was not just a passive director, but:
- visited each depot periodically;
- was involved in discussions around safety matters; and
- took an active interest in ensuring WHS compliance.
- Doble never pushed back when the Compliance Manager raised WHS matters requiring expenditure by Miller Logistics.
- WHS issues were minuted at management meetings and followed up, showing Doble verified resources were implemented.
- Doble put systems in place to identify and manage WHS risks at depots.
3. Key Takeaways
- For an officer to exercise due diligence, they need to ensure adequate systems and resources are in place for the company to comply with its duties, but they are not expected to know every detail of the company’s operations, especially in medium to large companies.
- Engaging competent personnel (like a health and safety manager) and implementing processes to identify and manage risks, along with active involvement and oversight by the officer, can demonstrate due diligence.
- Accurate record-keeping of discussions and actions related to health and safety matters at the board level is important evidence of an officer exercising due diligence.
Regulators Focus
Regulators have been focusing on workplace sexual harassment and its impacts. It is important to note that New South Wales, Tasmania, and the Northern Territory have adopted the national Model WHS Code of Practice, Sexual and Gender-Based Harassment released by Safe Work Australia.
Managing Psychosocial Hazards: The Expanding Role of HR Processes
Regulators are increasingly focusing on how organisations manage psychosocial hazards and the role of human resources staff. They have scrutinised HR processes and staff in identifying, assessing, and mitigating psychosocial hazards in the workplace, and their ability to manage these risks in a timely and appropriate manner.
Control Measures Businesses Can Take
Some key ways businesses can meet their WHS obligations regarding psychosocial hazards in the workplace include:
- ensuring HR investigations and processes are conducted in a timely manner, with reasonable timeframes set and communicated to participants;
- promptly informing complainants of the outcomes of HR investigations or processes;
- implementing procedures to identify and address situations where continuing with an HR process may pose a risk of psychological harm to the workers involved;
- providing training and guidance to HR personnel on their responsibilities and duties to identify, assess, and mitigate psychosocial hazards;
- implementing WHS systems and processes specifically designed to mitigate psychosocial hazards, such as procedures for handling workplace bullying, harassment, and stress management; and
- providing appropriate training and resources to both WHS and HR personnel to enhance their capabilities in managing psychosocial hazards within their respective roles and responsibilities.
Questions?
If you need legal assistance on a safety matter or in identifying who an officer is, book a consultation call on Prism. As a member, you can request unlimited legal advice consultations.
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