Australia: Key amendments to the model WHS Act and what you need to know

Safe Work Australia has announced amendments to the model WHS laws. On 6 June 2022, the national Model WHS Laws were amended to consider a wide range of matters, including recommendations from Marie Boland’s independent review of the laws in 2018. These amendments to the model WHS laws reflect an agreement reached by the Ministers responsible for WHS in each jurisdiction in May 2021 regarding the implementation of recommendations made by the Boland Review.

The Boland Review found the model WHS laws were working largely as intended. However, it noted that more needed to be done to help parties meet their duties with respect to psychological health and ensure monetary penalties act as an effective deterrent where breaches of the WHS laws are proven.

Of Boland’s 34 recommendations for the harmonised laws, Safe Work Australia (SWA) has implemented 20 of them. Updates will be made to the model WHS Act, the Act’s explanatory memorandum, the model WHS Regulations, the Regulations’ explanatory statement and other relevant materials.

It is however, up to each State and Territory to decide whether to amend their local laws to adopt the amendments to the model WHS laws. Some have already implemented a range of measures, ranging from Codes of Practice to equivalent amendments to their WHS legislation, but others seem to be still lagging behind.

Following is a list of the key amendments:

• Make regulations dealing with psychological health

Amend the model WHS Regulations to deal with how to identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks.

• Enable cross-border information sharing between regulators

Enabling regulators to share information between jurisdictions in situations where it would aid them in performing their functions in accordance with the model WHS laws.

• Production of documents and answers to questions for 30 days after the day they or another inspector enter a workplace

Enable inspectors, within 30 days of any inspector’s entry to the workplace, to require the production of documents or answers to questions related to the purpose of entry within a specified period or require a person to attend before the inspector at a specified time to answer questions.

• Prohibition on insurance and other similar arrangements that cover the costs of a monetary fine or penalty imposed on a person under the model WHS Act.

Other amendments to the model WHS laws include allowing Health and Safety Representatives to choose which training courses they attend (ie. without consulting the PCBU), and clarifying that work groups are to be negotiated and agreed with the workers who are proposed to form the work group.

View the full list of the amendments for more information.

Focus on psychosocial hazard and psychosocial risk.

The new model WHS Regulation amendments have defined psychosocial hazard and psychosocial risk. They provide useful guidance about the steps that need to be taken in considering this risk, as well as relevant considerations for determining appropriate control measures.

The model provisions cast a broad net and will require consideration of not only the physical work environment but also how and when work is undertaken, behaviours in the workplace, and instruction, training, and supervision.

Next steps for your organisation.

Employers should be aware that the changes need to be adopted by each jurisdictional government before they can take effect. Therefore, they do not necessarily need to create any immediate legal obligations.

The amendments which provided regulations to the management of psychosocial hazards in the workplace, make it clear that employers must take active steps to manage psychosocial hazards and manage psychological risk in order to satisfy their WHS duties. This is far more reaching than simply managing bullying and well-being within a workplace. It extends to considering the very nature of how work is designed and performed, in addition to managing workplace interactions and behaviours.

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If you are looking for a Risk Management professional to join your team and manage psychological risk at your workplace, please contact Angela Franks Head of Frazer Jones Australia.