WHS and OHS Regulatory Update: November 2024

In Short

• WHS Focus Year-Round: Safe Work Australia’s National Safe Work Month highlighted key WHS issues such as psychosocial hazards and musculoskeletal injuries, reinforcing that safety is a shared responsibility.
• Legislative Updates: Proposed WHS amendments may expand incident notification requirements, including cases of violent incidents and long-term absences due to psychological or physical injuries.
• Communication is Key: A recent unfair dismissal case shows the importance of effectively communicating workplace policies to ensure compliance and reduce risks.

Tips for Businesses

Clear and ongoing communication of workplace policies is crucial. Use interactive training to explain expectations and secure written confirmation from employees that they have read, understood, and will comply with policies. Regularly refresh training on critical areas like discrimination, harassment, and safety to maintain compliance and reduce liability.

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Table of Contents

• Regulators Focus
• Amendments to Legislation
• Cases and Incidents
• Questions?

Officers have ongoing obligations to ensure that their organisations remain compliant. They also must have current and relevant knowledge of work health and safety matters. This update will help officers comply with their obligations and stay updated with changes to WHS by highlighting recent developments.

Regulators Focus

October 2024 was Safe Work Australia’s National Safe Work Month, which encouraged businesses and workers to examine WHS priorities and take preventative action to reduce the number of work-related injuries, illnesses, and fatalities in the workplace. 

The theme of National Safe Work Month was “Safety is everyone’s business”. This reinforces that a safe and healthy working environment is fundamental across all industries and occupations. As the theme suggests, it is an important reminder of the three key duty holders under WHS legislation specifically: 

• persons conducting a business or undertaking (PCBUs); 
• officers; and
• workers.

Key topics that Safe Work Australia focused on during National Safe Work Month included: 

• work health and safety fundamentals; 
• psychosocial hazards; 
• risk management fundamentals; and 
• musculoskeletal injuries. 

While Safe Work Month may be over, the focus on creating safe and healthy workplaces must continue year-round for businesses and workers.

2024 Key Employment Law Changes

As an employer, it is essential to understand what employment laws have changed and their implications for your business — particularly the changes to the Fair Work Act 2009 through the new Closing the Loopholes legislation.

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Amendments to Legislation

Incident notification

WHS legislation requires a PCBU to report a notifiable incident, which includes a ‘serious injury or illness’. 

Safe Work Australia is currently looking to draft amendments to the model WHS Act. They aim to expand the reporting obligations and incident notification requirements of PCBUs. Some changes which Safe Work Australia have outlined it may look to implement include: 

• capturing serious work-related injuries and illnesses that are not already notifiable through the timely notification of a worker’s absence period (or likely absence period) of 15 or more consecutive calendar days due to psychological or physical injury, illness or harm arising out of conduct of the business or undertaking;
• capturing violent incidents, including sexual assault, arising out of the conduct of the business or undertaking that may not result in a serious physical injury or illness triggering notification, but that exposes a worker or other person to a serious risk to a person’s physical or psychological health and safety; and
• requiring the immediate notification of a work-related (or suspected work-related) suicide or attempted suicide of a worker, and the suicide or attempted suicide of other persons in specific settings.

Safe Work Australia aims to finalise these amendments by early 2025. 

Other Proposed Changes

The Queensland Government is considering introducing new laws from 1 January 2025 to protect workers from electrical risks. These laws will address working near energised electrical equipment and entering domestic roof spaces.

Employers and workers in Queensland will be required to de-energise relevant electrical installations. Otherwise, they must comply with additional safety measures when carrying out work in or entering the roof space of a domestic building. This will apply across all industries. 

Cases and Incidents

In a recent decision regarding unfair dismissal, the Fair Work Commission (Commission) offered a stern warning to employers who “tick and flick” when implementing workplace policies. 

1. What Happened?

The applicant, a 62-year-old truck driver, had been employed by Phosphate Resources Ltd (Company) since 2004. The Company terminated the applicant’s employment for serious misconduct after an investigation confirmed that he repeatedly breached the Company’s Code of Conduct, Standards of Behaviour Policy, Anti-Discrimination and Harassment Procedure, and Psychosocial Safety Policy (Policies). The relevant conduct included repeated use of explicit language towards another employee. This was done despite repeated requests for the applicant to stop. 

Furthermore:

• the applicant argued that he was unaware of the Policies his employer alleged he breached;
• the Company contended that it discussed the Code of Conduct at a toolbox meeting. They also noted that the other relevant policies, as the Commission put it, “had been around a while, so they assumed that they had been rolled out”; and
• the applicant claimed that he did not remember the meeting. 

2. What Was the Outcome?

The Commission did not dispute that the applicant made the relevant offensive comments. 

However, the Commission was critical of the Company’s argument that holding a 30-minute toolbox meeting was sufficient to outline the expected workplace behaviours. Specifically, the Commission found that this gave the hallmarks of a “tick and flick” approach to compliance.

The Commission found that on the balance of probability, the employees were not likely to be aware of or familiar with the Policies. 

The Commission acknowledged that employers cannot and do not have to implement “a policy for everything”. However, the Commission emphasised the importance of training employees using culturally appropriate, interactive courses explaining “what” and “why.”

The Commission found that the applicant engaged in the behaviour and that termination had a valid reason. However, the Commission deemed the dismissal harsh and unjust. The applicant’s length of service and lack of exposure to or understanding of the Policies contributed to his behaviour.

3. Key Takeaways 

This case, although focused on unfair dismissal, highlights an important lesson. It emphasises the need to effectively communicate workplace policies that govern behaviour and impact health and safety.

We recommend that employees be required to provide written confirmation (e.g., by email) that they have:

• read;
• understood; and 
• will comply with the policies. 

Questions?

Your business is a client of LegalVision. If you have any questions about work, health, and safety matters, including officers’ or business’ obligations, your business can book an appointment with us.