Workers on tiled roof

Safety takes centre stage

A national review of WHS laws has been underway, with HIA supporting industry as part of the consultation process.

Author

Melissa Adler and Simon Croft

While work health and safety (WHS) should always be a key priority in every business, 2018 was a particularly pivotal year in shining a spotlight on the current safety laws in Australia.

 

This complex area has been the subject of not one, but three national inquiries, with nearly every state undertaking some form of review of its own systems. Not to mention a number of new and revised Codes of Practice, both at state and federal level, which are subject to ongoing reviews and development.

Some of the key matters looked at in the various reviews included: the potential adoption of an offence for industrial manslaughter; means of improving mental and physiological health in the workplace; the role of WHS regulators in applying and providing education on the WHS laws; and the complexity and general understanding of applying the WHS laws in practice.

This focus has left no doubt as to the importance of keeping a workplace safe.

Harmonising WHS laws

The introduction of harmonised WHS laws (also known as the ‘model laws’) in Australia represented a watershed moment in the development of Australian WHS regulation. While the laws emanated from a process of harmonising existing state- and territory-based WHS laws, the final outcome went well beyond that.

On 1 January 2012, new WHS laws commenced in New South Wales, Queensland, the Australian Capital Territory, the Commonwealth and the Northern Territory. A year later, South Australia and Tasmania implemented similar laws. 2018 saw the Western Australian Government commit to consideration of adopting the model laws, while Victoria continues to maintain its own WHS laws, though it has many commonalities with the model laws.

Although the WHS laws have been harmonised, the Commonwealth, states and territories are responsible for making and enforcing their own WHS laws. Despite similarities between the laws there are also some differences that can cause confusion.

In the building industry many of these differences exist in state-based Codes of Practice. An example of this is fall from height thresholds (the point at which fall protection is required) vary from state to state.

2018 saw the first holistic review of the model laws.

Common themes from the feedback and submissions to this review, including that provided by HIA, identified that the current consultation obligations, the notion that a person conducting a business or undertaking (PCBU) might hold concurrent safety duties, and the duty to consult with workers, were not operating as intended and are not clearly understood.

Further, the lack of consistency in the application and interpretation of the model WHS laws, within and across jurisdictions, was also a strong message delivered during the review. This reflected HIA’s view that enforcement of the laws should be fair and that there should be certainty in relation to ‘what compliance looks like’.

In response to the review HIA also highlighted the need for a pragmatic approach to compliance with safety laws.

The review’s report was considered by Safe Work Australia (the national safety regulator) in December 2018 and the final report and government response is intended to be released in the first quarter of 2019.

HIA will closely monitor the outcomes and recommendations, and will continue to champion HIA’s position to support industry in applying the WHS laws.

In 2018 a review of the Work Health and Safety Regulatory Framework in the Building and Construction Industry was also carried out by law firm Seyfarth Shaw Australia, with assistance from the Australian Government Department of Jobs and Small Business.

This review essentially deferred the matters raised for consideration as part of the model laws review.

[In 2018 WHS laws] have been the subject of not one, but three national inquiries, with nearly every state undertaking some form of review

Industrial manslaughter

‘Industrial manslaughter’ is an offence that came into being in 2004 in the ACT to deal with deaths in the workplace at the hands of companies. It was argued that these deaths were not being captured, either by the corporate manslaughter provisions of the general criminal law nor by workplace health and safety laws.

Since that time various state parliaments have considered the adoption and use of the offence of industrial manslaughter, however, at present there does not seem to be any national consensus regarding the need for an industrial manslaughter offence.

For example, a South Australian Parliamentary Committee observed that ‘there are adequate legal systems in place to deal with industrial death’¹ and did not support the adoption of the offence of industrial manslaughter.

In contrast, the Queensland Government set its WHS laws apart from other jurisdictions when it introduced the offence in 2018. The Queensland laws introduced two new criminal industrial manslaughter offences in relation to a PCBU and a senior officer.

A PCBU or a senior officer can be prosecuted where a worker carrying out work for the PCBU dies, or is injured and later dies, where:

  • the death of the worker was caused by an act or omission of the PCBU or a senior officer; or
  •  the death of the worker was caused by the PCBU or a senior officer’s negligence.

Where a PCBU is a corporation and it commits industrial manslaughter, the maximum fine is $10 million. If an individual commits industrial manslaughter, either as a PCBU or a senior officer, there is no provision in the legislation for a fine, and the maximum penalty is 20 years imprisonment.

So far only the Victorian Premier has made a move to follow Queensland’s lead by making a pre-election commitment to introduce industrial manslaughter laws.

Finally, a Labor-initiated federal Senate inquiry into the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia recommended that all states and territories introduce industrial manslaughter laws.

HIA is of the view that the establishment of a discrete criminal offence to respond to deaths at a workplace is an unnecessary step for the WHS legal framework. The current penalty regime and enforcement approach in the model WHS laws is appropriate and enables regulators to impose significant penalties, including gaol terms, in response to serious WHS incidents.

While to date there have been no successful prosecutions under industrial manslaughter laws, the reviews and inquiries into safety laws, coupled with political motivations behind the adoption of such reforms, put a regulatory response to workplace fatalities firmly on the agenda.

The WHS regulatory space is definitely one to watch in 2019.  

1. Recommendation 3, ‘Report into the referral of the Work Health and Safety (Industrial Manslaughter) Amendment Bill’, 2016, p.iii.

Cranes on high-rise building

HIA’s policy position

HIA has adopted the following five principles in relation to the development of legislation for safer workplaces and more appropriate workplace health and safety (WHS) regulation and procedures.

1. Practicality of Compliance

2. Certainty of Compliance

3. Fairness of Enforcement

4. Liability based on “actual” Control

5. National Consistency

HIA considers that these principles should be used as a benchmark for considering current and future WHS regulations for residential building work. Read HIA’s policy position on Health & Safety for Residential Building Work in the Workplace.

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