Welcome to your biannual regulatory update.
As an officer in your business, you have a personal responsibility under Work Health and Safety (WHS) law to take reasonable steps to ensure your business is a safe place to work. As part of meeting this obligation, you must maintain current knowledge of WHS matters as they apply to your business.
This bulletin provides you with an overview of key amendments to Australian WHS and Occupational Health and Safety (OHS) legislation in the last 12 months, as well as any relevant material prepared by the safety regulators at that time. The laws are not amended frequently, so we will let you know when they change.
Amendments to Legislation
This year, we have seen the following (relevant) amendments to WHS and OHS legislation:
Australia wide
A new positive duty for employers and PCBUs to eliminate, as far as possible, workplace sexual harassment, sex discrimination and victimisation commenced in December 2022. The Australian Human Rights Commission have been given powers to investigate and enforce compliance with the positive duty, and these powers commenced on 12 December 2023.
NSW
- Board director conduct is now expressly relevant when considering whether or not a company (or other corporate entity) is liable for conduct under the Act.
- A defence to provisions establishing the body corporate’s intent in a particular prosecution (which can impact liability and penalties) has been created where the body corporate can show it took ‘reasonable precautions’ to prevent conduct or authorisation of it.
- Penalties will increase. The maximum for a Category 1 offence for a PCBU. Category 2 and 3 offence penalties have also increased.
ACT, SA, NT
Psychosocial hazards are now expressly acknowledged in the Regulations. This brings these state/territory regulations into line with the model WHS laws.
VIC
There is proposed legislation to increase obligations around psychosocial hazards. We will let you know once/if this legislation passes.
QLD
There is proposed legislation to:
- strengthen and promote the role of health and safety representatives;
- clarify and streamline the dispute resolution process; and
- amend a Category 1 offence to include negligence as a fault element in addition to reckless conduct.
We will let you know once/if this legislation passes.
Case Studies
The following cases are of interest because of their implications for business.
Haytham M J Remawi v Virgin Australia Airlines Pty Ltd [2023] FWC 1501
A recent decision of the Fair Work Commission (FWC) demonstrates that employers can take disciplinary action against employees whose conduct creates a health and safety risk for other employees. In this case, an employee was the applicant in an unfair dismissal application after being summarily dismissed for serious misconduct. The employee was part of Virgin Australia’s pit crew at Sydney airport, loading and unloading aircraft.
In Virgin Australia’s “Workplace Behaviour Policy”, inappropriate behaviour “not allowed and not tolerated” included making false or malicious complaints. The FWC found that the employee had made repeated false and exaggerated complaints against fellow employees. This culminated in the employee deliberately driving into the blind spot of another team member in an attempt to create a reportable safety incident. In addition, it was alleged that the employee repeatedly sent unwelcome Facebook messages to a female team member despite requests to stop. Following the allegations being put to the employee, the employee was terminated.
The FWC found that there were valid reasons for the employee’s dismissal, as his conduct created risks to the psychosocial safety of his colleagues.
The Full Bench of the Fair Work Commission later refused the employee’s appeal against this decision.
WorkSafe Victoria v Whitelom Investments Pty Ltd (in liquidation) (2023)
A manager of two hospital coffee shops and two associated companies was convicted and fined by the Melbourne Magistrates’ Court for failing to ensure a workplace under his control was safe and without risks. The investigation by WorkSafe Victoria started in April 2021 following sexual harassment complaints. The complaints of sexual harassment made about the cafe manager included touching, groping and sexually intrusive and suggestive comments. WorkSafe also found that despite there being an online bullying and harassment policy, it had no information as to how employees could make a complaint or to whom.
The Court held that it was reasonably practicable for both companies to provide staff with relevant training and information as to how to report incidents of sexual harassment other than to the manager.
Continue reading this article below the formKey WHS Statistics Australia 2023
- In the SafeWork Key WHS statistics, mental stress made up 9.2% of the number of serious claims, with a total of 9.2% in 2021-22. This has risen from 6.5% in 2011-12.
- This growth has been driven by an increase in the number of serious claims each year for mental health conditions to 3,500, or a 43.3% increase in the period.
- The median time lost for Mental Health Serious claims was 34.2 weeks, with a median compensation of $58,615.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
Now more than ever, a business must demonstrate it is proactively taking steps to address the risks and hazards within its business, including non-physical ones. Businesses should have a documented plan to identify, control and review risks within their business.
Questions?
Your business is a client of LegalVision. If you have any questions in relation to work health safety matters, including officers’ obligations, or the business’ obligations, your business can book in and speak to us.
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