Industrial manslaughter Laws

Are Australia’s WHS laws so confusing that we are causing more injuries? The latest statistics show that in Australian workplaces fatalities are increasing in 2019 compared to last year. The latest count up to 26th September 2019 shows 116 workplace fatalities which are ten more than the same time last year. The results come with workplaces focussing on improvements and having in place processes that are generally of high quality.

Why are we not seeing improvement? Many would argue that the increased rate of a casualised workforce is to blame’ some would say it’s all about leadership, and others would suggest that safety training is missing its mark. But is it because our WHS Laws are confusing and compliance is difficult?

For this article, we look at the Review of the Model Work Health and Safety Laws – Final Report published by Safe Work Australia in December 2018 for some guidance. The report sets out seven areas of discussion with some key recommendations. For this article, we provide a summary.

Adopting the Legislative Framework

The report suggests that there is overwhelming support for the three-tiered framework of the model WHS laws, which comprise the model WHS Act, model WHS Regulations and the Model Codes. However, many businesses find it challenging to navigate their way through these three tiers and to identify those aspects which specifically apply to them. Many small companies are unclear about how to assess risks and hazards in their workplace and what actions they should take to fulfil their WHS obligations. Due to this issue, Safe Work Australia recommends a review of the Regulations and Codes of Practice.

There is a particular issue with psychosocial risks in the workplace, and the WHS laws fail in their consistency.  Many businesses report that they are uncertain about how to best address psychological health in the workplace. For small business they want more prescription and practical guidance to help them identify and manage psychosocial risks and hazards. Given the complexity of managing employee mental health, a clear set of requirements and guidance are sorely needed to assist business.

There is currently an inquiry underway by the Productivity Commission into the role of mental health in the Australian economy and the best ways to support and improve national mental wellbeing.

The Tap Into Safety Mental Health Training increases mental health literacy on workplace stressors to teach effective coping strategies using animated storytelling. We have developed several out of the box employee mental health modules. The training can be completed online, on tablets and mobile phones in under 5 minutes and draws on a MicroLearning methodology. Every training module offers suggestions on where employees can seek help. Training costs as little as $10 per module, and you can get started for as little as $500.

See our article, Encouraging Reporting of Psychological Injuries.

WHS laws

What Are Our Duties Of Care?

From the report, it appears business understands their duties as a PCBU (‘person conducting a business or undertaking’). However, many find it very difficult to apply the duties in practice. The requirement to consult, co-operate and co-ordinate becomes confusing when there is more than one person who holds the same duty of care. The WHS laws need to provide more guidance when there are multiple duty holders.

See our article, What Are Your Workplace Health and Safety Obligations?

Health and Safety Committees

Consultation is a requirement in the model WHS laws. Yet we find that genuine consultation with workers is not always occurring. There is a clear need for more practical information on how health and safety committees operate and on the issue resolution process. Business needs practical examples of how they can undertake meaningful consultation in traditional and non-traditional settings. Concrete examples are especially important for small business who may not have dedicated health and safety expertise within their employees.

How Can We Ensure Compliance and Enforcement?

The report has highlighted that there are issues with the incident notification provisions. There appears to be significant confusion about what companies should send to the regulators. Once again this is a problem when psychological injuries occur because there is no notification trigger in place. Other incidents, injuries and illnesses associated with new work practices, industries and work arrangements are also slipping through the cracks. Physical safety risks are ever-evolving with new industries emerging that introduce new risks and hazards.

See our article, Can Employees Recognise, Recall and Report Workplace Hazards?

Can We Achieve National Compliance?

There is inconsistency by the regulators across the jurisdictions in their implementing of the model WHS laws. No jurisdiction has the same laws and Victoria, and WA has not taken on the model WHS at all. When we set out to harmonise the legislation the goal was to achieve one set of WHS laws for the nation. We don’t appear to be any closer to the original intention to harmonise WHS laws for Australia.

the law

Will Offenders Be Prosecuted?

Prosecutions for breaches in workplace safety see many in the community up in arms. The regulators have a  reputation of being toothless tigers and workplace fatalities seem to be unfairly punished. There is a growing public debate about introducing industrial manslaughter laws. Queensland and the ACT already have them in place. Victoria and the Northern territory are looking to introduce them soon. The WA state government is in support and discussions are currently underway. Safe Work Australia is recommending industrial manslaughter is included in the WHS laws. While tougher penalities are not good news for business; unsafe practice does need to be no longer allowed to continue.

Model Work Health and Safety Regulations

One tool that is helping to clarify hazard mitigation and minimisation is the hierarchy of controls measures. Currently, the discussion around this framework sits within the model WHS Regulations. Safe Work Australia is proposing to move the concepts underpinning the hierarchy to the WHS laws. In doing so, all businesses will be ‘told what to do’ to meet their WHS obligations. The hierarchy of control provides practical steps for business and begins to address the confusion around managing risks to provide a safe working environment.
address existing confusion and uncertainty.

Another area of confusion is around Safe Work Method Statements (SWMS) for high-risk construction work. Many businesses do not understand when they need a SWMS. When they do produce a SWMS they are often in a reusable template and not fit for purpose.  Once completed, they take up room on dusty shelves and are never reviewed or looked at again. Many businesses believe that they are only there to provide evidence of compliance in the event of an incident. Some see the additional requirement for the SWMS as another burden that does not result in an improvement in safety. Safe Work Australia is moving towards providing a basic SWMS template in the WHS Regulations. They plan to support the template with an interactive tool that gives clear guidance on the information and actions that need to be taken to complete a SWMS.

To Conclude

This article highlighted the increase in workplace fatalities in 2019 compared to the same time last year, where we have ten more workers who have died while at work. We argue that one of the reasons that we have not seen improvement and appear to be going backwards is due to Australian WHS laws that are confusing and make compliance difficult. We provided a summary of the report from Safe Work Australia who has reviewed the model WHS Laws, Regulations and Codes to establish areas of concern and key recommendations. Understanding the WHS laws, being able to apply them, having appropriate prosecutions if safety is breached, are necessary steps to improve workplace safety in Australia.

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