When the model WHS laws were developed, WHS ministers agreed their content and operation should be reviewed every five years after commencement. In August 2017, WHS ministers asked Safe Work Australia to conduct the first full review of the model WHS laws, to be finalised by the end of 2018. This aligns with Safe Work Australia’s statutory function to develop, maintain and, if necessary, revise the model WHS laws.
WHS ministers asked Safe Work Australia to examine and report on the content and operation of the model WHS laws, including whether they are effective and operating as intended, have had any unintended consequences and can adapt to changes in work organisations and relationships. The terms of reference called for the review to be evidence-based and propose actions that WHS ministers could take to improve the model WHS laws or identify areas for further assessment.
To ensure the process was as robust and transparent as possible, Safe Work Australia appointed an independent reviewer, Ms Marie Boland, to conduct the review (the 2018 Review). Ms Marie Boland is an experienced WHS consultant and former Executive Director of SafeWork SA. Ms Boland focused on four key questions:
- What currently works and why?
- Will it continue to work as work practices and environments evolve?
- What doesn’t work and why?
- What could we do to make it work?
Public consultation for the 2018 Review was extensive. Ms Boland released a discussion paper that outlined the review’s objectives, discussed the key areas of focus and called for written submissions. A series of online discussion forums were also available for targeted feedback on six topics.
Ms Boland travelled to every capital city and two regional centres: Tamworth and Cairns. She held meetings with safety regulators, businesses, workers, unions, industry organisations, health and safety representatives, health and safety and legal practitioners, academics and community organisations.
Through this consultation, 387 people attended 81 face-to-face consultations. Stakeholders provided over 120 comments on the online forums and over 130 written submissions. Unless otherwise requested by the authors, written contributions were published on the Safe Work Australia’s Engage web page. A consultation summary is also available on the Safe Work Australia website.
The final report of the 2018 Review was provided to WHS ministers on 18 December 2018 and published on the Safe Work Australia website on 25 February 2019.
The 2018 Review found the model WHS laws are largely operating as intended and support for harmonisation remains strong. The three-tier framework of the model WHS laws, consisting of the model WHS Act, the model WHS Regulations and the model Codes of Practice, is effective and widely supported. Stakeholders believe the framework is sufficiently flexible to accommodate the evolving nature of work and work relationships.
However, the 2018 Review report identified several areas where action may be taken to improve clarity, reduce complexity and promote consistency. The report made 34 recommendations aimed at addressing these issues, including:
- reviewing the model WHS Regulations and model Codes as they relate to the seven priority industries in the Australian Work Health and Safety Strategy 2012–2022 (the Australian Strategy)
- amending the model WHS Regulations to deal with how to identify psychosocial risks in the workplace and the appropriate control measures to manage those risks
- introducing new arrangements for Health and Safety Representatives (HSRs) and work groups in small businesses
- clarifying requirements for workplace entry of union officials providing assistance to HSRs
- requiring inspectors to deal with safety issues when cancelling a Provisional Improvement Notice (PIN)
- providing HSRs with the choice of training provider
- strengthening the dispute resolution process
- extending inspectors’ powers to require documents and answers to questions
- including ‘gross negligence’ as an element of a Category 1 offence and creating a new offence for industrial manslaughter
- increasing the penalty levels for WHS breaches
- prohibiting insurance and indemnity covering WHS penalties
- clarifying the risk management process in the model WHS Act, and
- including a template for Safe Work Method Statements (SWMS) in the model WHS Regulations, supported by development of an interactive tool.
The 2018 Review report also recommends a comprehensive review of the National Compliance and Enforcement Policy, to support consistent implementation and enforcement of the model WHS laws that underpin harmonisation.
The recommendations of the 2018 Review are subject to the COAG RIS process. This involves consulting on the impacts of implementing the recommendations and alternative options to address the problems identified by the 2018 Review. Information gathered through consultations is used to assess the impacts and identify the options with the greatest net benefit to the community, businesses and workers. This will assist WHS ministers to decide which of the 2018 Review recommendations should be implemented.