Some recent developments have occurred in the work health and safety (WHS) space, which duty-holders must familiarise themselves with. As well, the Labor Government has flagged a number of WHS reforms.
Introduction of the Workplace Legislation Amendment Bill 2022 in the ACT
On 8 June 2022, the ACT introduced the Workplace Legislation Amendment Bill 2022 (Bill), which proposes to make a raft of changes to WHS legislation in the ACT.
The Bill intends to implement a number of recommendations from Marie Boland’s review of the Model Work Health and Safety Laws in 2018/19 (Boland Review).
Significantly, the Bill would make sexual assault a “notifiable incident” and require a person conducting a business or undertaking (PCBU) to report to WorkSafe ACT an incident, including a suspected incident, that exposes a worker or any other person at the workplace to sexual assault. The duty to report is not limited to circumstances where there is a conviction or proof.
These notification obligations require that the reporting of a sexual assault incident occur immediately after the PCBU becomes aware of the incident. As well, the duty to notify WorkSafe may be triggered by not only by a direct report made to the PCBU, but also an indirect report.
This change reflects the increased awareness and public discourse around the prevalence of workplace sexual harassment and assault, as reflected by various government inquiries and reports into these issues, including the Respect@Work:Sexual Harassment National Inquiry Report. The mandatory reporting requirement is in line with the Boland Review, which recommended that there should be incident notification provisions for psychological injuries and any injuries or illnesses emerging from new work practices or arrangements.
If passed, this Bill would reflect a significant shift in the WHS space as it recognises that sexual assault may result in serious physical or psychological injury, regardless of whether medical treatment is sought. The inclusion of sexual assault as a notifiable incident also recognises that the assault may result in exposure risks to other workers or witnesses at the workplace who in turn may suffer injury from the exposure.
SafeWork Australia’s Code on Managing Psychosocial Hazards at Work
On 1 August 2022, SafeWork Australia released its Model Code of Practice on Managing Psychosocial Hazards at Work (Code).
The Code identifies a number of common psychosocial hazards in the workplace, including job demands, poor support, inadequate recognition, sexual harassment, bullying and remote or isolated work. The Code includes guidance on how to identify psychosocial hazards, assess the risks and implement control measures within the workplace.
Although the Code will need to be adopted by each WHS harmonised state and territory to have legal effect in that jurisdiction, NSW has already taken the lead last year when SafeWork NSW introduced its Code of Practice for Managing Psychosocial Hazards at Work.
PCBUs should act now to understand their legal obligations and review their risk management frameworks in the context of both the Australian and NSW Codes. This is particularly important given codes of practice are admissible in court proceedings and courts may regard a code of practice as evidence of what is known about a hazard, risk assessment or risk control. Therefore, courts may rely on the Code (if adopted) in determining what measures or conduct was reasonably practicable for a PCBU to take in relation to managing psychosocial hazards in the workplace.
Labor’s proposed reforms
Following the recent Federal election, the Labor government has indicated its intention to implement a number of WHS reforms. These changes include:
Harmonisation of Model WHS Laws: Labor intends to fully implement all remaining recommendations from the Boland Review. This includes the introduction of specific regulations dealing with psychosocial hazards in the workplace, on which SafeWork Australia has just released a new Code of Practice, as discussed above.
Industrial manslaughter: Labor also intends to harmonise industrial manslaughter laws throughout Australia by inserting these provisions into the Model WHS Act and encouraging states and territories to adopt these provisions.
Reverse onus of proof: The government seeks to establish a reverse onus of proof in WHS prosecutions, which would require PCBUs to prove that they have taken reasonably practicable steps to ensure the health and safety of their workers and to prevent the occurrence of a WHS offence. If introduced, this would put significant pressure on PCBUs given WHS offences attract criminal liability and heavy penalties. Notably, the reversal of the onus of proof in WHS prosecutions was not recommended in the Boland Review.