State Legislation:
For the financial year 2023 to 2024, there were a number of amendments to the Work Health and Safety Act and Regulations, those being:
On 25 August 2023, the Work Health and Safgety Regulations were amended relating to obligations to introduce control measures for psychosocial hazards and injuries. These regulations came into effect on 25 December 20223.
On 29 November 2023, the South Australian Parliament passed the Work Health and Safety (Industrial Manslaughter) Amendment Bill that introduced the Industrial Manslaughter provisions. The introduction of the Work Health a Safety (Industrial Manslaughter) Amendment Bill establishes substantial increases in penalties for an offence. Maximum penalties include $18M fines for companies, and individuals can face up to 20 years imprisonment. It is critical to note that these changes take effect from 1 July 2024.
Further to these changes, the Work Health and Safety (Review Recommendations) Amendment Bill 2024 (the Bill) was first introduced in Parliament on 16 May 2024 and has now passed both Houses of the South Australian Parliament. The changes will take effect on a day to be fixed by proclomation and will make significant amendments to the Work Health and Safety Act 2012 (SA) (WHS Act).
The most notable changes are in the following three key areas:
Disclosure of information
The WHS Act has been amended to allow Safework SA to disclose information about a workplace incident to persons directly affected by the incident, being the person conducting the business or undertaking (PCBU), workers or family of injured workers. SafeWork SA will publish a policy later this year outlining the circumstances when information may be disclosed.
Dispute resolution
The South Australian Employment Tribunal (SAET) has been given powers to assist in WHS dispute resolution and to impose civil penalties. If the regulator is not able to resolve the dispute, the matter can be referred to the SAET by the PCBU or a worker, if it involves a serious risk to health and safety and the PCBU employs more than 15 workers. If the dispute remains unresolved at least 24 hours after SafeWork SA has been asked to appoint an inspector to assist in resolving the dispute, notice can be given to SAET.
The SAET will be empowered to resolve the dispute, including by mediation, conciliation or arbitration, making a recommendation or expressing an opinion, referring a matter to the regulator for potential investigation, or making any order it considers appropriate for the prompt settlement of the dispute. A relevant Union may give notice it wishes to be involved in resolution of the dispute and is then taken to be a party to it.
Right of entry
Union officials who hold a WHS entry permit must notify SafeWork SA if they enter a worksite but will no longer be required to issue a report to SafeWork SA about the visit. If they do issue a report, SafeWork SA will have to advise the WHS permit-holder about their response to the report. A WHS permit-holder who enters a workplace to investigate suspected WHS contraventions will also lawfully be able to make recordings and take measurements relevant to the suspected contravention, subject to maintaining any required confidentiality regarding the material.
The SAET will also have power to issue a “probationary declaration” against a union. A declaration can be made if the union has a significant record of refusing or failing to comply with obligations applying to WHS right of entry. The declaration remains operational for 2 years, during which time the union cannot seek penalty orders from SAET.
Also, during the period of operation of the declaration, officials of that union who hold a WHS entry permit must notify SafeWork SA before exercising a right of entry to investigate suspected WHS contraventions, and must provide a written report to Safework SA within 14 days setting out the details of their investigation.
Other powers of the SAET include:
In addition, the following provisions will apply:
A new exemption to confidentiality requirements:
The Bill inserts a new exemption to confidentiality requirements which will provide SafeWork SA (or person authorised) with a broad discretion to disclose information relating to an incident to persons, family members or interested parties with a direct connection to the incident, for example details of actions taken in response to a workplace accident.
Certain information cannot be disclosed, for example information that is commercial in confidence, or legally privileged, or which relates to an ongoing investigation, and cannot be given to a person who is, or who may be expected to be required to give evidence as part of an investigation or prosecution relating to the incident.
Amended limitation period for prosecutions that have not been brought:
Where a prosecution has not been brought, a person who considers that an industrial manslaughter offence, a Category 1 offence or a Category 2 offence has been committed may make a written request to the Regulator that a prosecution be brought. This is to allow victims and their families to extend the existing time limit for making a prosecution request from 12 months after a coronial report, or proceedings at a coronial inquiry or inquest.
The amendments also include extending the limitation period where a matter is referred to the Director for Public Prosecutions (DPP) for a review, in which case a prosecution may be commenced within 1 month following the provision of the advice to the regulator as to whether a prosecution should be brought.
A new jurisdiction to determine WHS disputes
WHS rights of entry to inquire into suspected contraventions:
The Bill removes the requirement for WHS entry permit holders to provide a written report to SafeWork SA after exercising their entry rights. However, a permit holder may still choose to provide a report in which case SafeWork SA must advise of any action taken in response.
Additional rights for WHS entry permit holders:
WHS entry permit holders, when undertaking an inspection in the workplace in relation to a suspected contravention of the WHS Act will be able to:
Take measurements or conduct tests (including bringing and using equipment and materials) directly relevant to the suspected contravention; and
Increased penalties:
The amendments will increase the maximum penalty for breaching an order of the SAET for dealing with a right of entry dispute from $50,000 to $100,000 in the case of a body corporate. The $10,000 maximum penalty for an individual is retained.
Other changes under the Bill include:
A new provision to clarify the interaction between the new dispute process in the SAET and the existing right to cease unsafe work under the WHS Act, making it clear that the new dispute process is not intended to impinge upon or reduce the existing right to cease unsafe work;
An amendment to provide that a representative of a PCBU or a worker has a right to seek an internal review of a reviewable SafeWork SA decision;
The formation of a tripartite advisory committee to provide a forum for high-level stakeholder advice on how to improve Safework’s operations; and
To ensure that any policy of insurance or other indemnity against fines and penalties that arise from breaches of the WHS Act, to the extent it exists, is void.
Key takeaways and implications for businesses and undertakings:
As the amendments will bring significant changes to WHS laws in South Australia, employers and businesses should commence a review of relevant policies and industrial management plans to ensure these are adapted to the timing of the changes, including with respect to rights of entry by WHS permit holders.
As emphasised, businesses should seek advice about what impacts may be specific to them and develop or review any industrial plans and strategies they may have for managing WHS disputes in the workplace.
