WHS Risk Management – the heat is on
Weekly WHS Article 7th September 2023
Except for Victoria, all states and territories in Australia will see a significant increase in the value of WHS penalties, and the duration of WHS custodial sentences, when or if, they adopt the changes introduced by the Safe Work Australia Model Work Health and Safety Legislation Amendment (Offences and Penalties) 2023 (Model Provision Amendments) that were agreed upon on the 27th July 2023 (ref 1). An amendment will only become law in a state or territory when it adopts the amendment into their WHS law.
The Model Provision Amendments include:
Model penalties for the offence of industrial manslaughter – The industrial manslaughter provision in the model WHS Act, section 30A, does not create the offence of manslaughter, but enables each State and Territory to create the offence (or retain any existing industrial manslaughter offences) and advises them to adopt maximum penalties of $18 million for bodies corporate, and 20 years' imprisonment for individuals.
Clarification that an officer may commit a Category 1 offence under section 31 of the Act.
Changes in how WHS penalty provisions are expressed, increasing penalty amounts and providing for their indexation – note: Category 1 maximum penalties increase;
For corporates from $3M to $10,425,000
For officers from $600,000 to $2,085,000
For others from $300,000 to $1,042,000
Provision for the aggregation of conduct for body corporate PCBUs; and
Clarifying that a PCBU must manage psychosocial risks in compliance with the risk management provisions of the WHS Regulations and any failure to do so will constitute a breach of s19 of the WHS Act (i.e., the primary duty of care provision).
You can see and download if required, the current 1st August 2023 version of the Model Work Health and Safety Act from Safe Work Australia’s website (ref 2). It includes all amendments made since 2011.
The Commonwealth Government and Industrial Manslaughter
The Workplace Relations Minister has recently announced that as from July 2024 federal public servants who were found guilty of industrial manslaughter for a worker’s death could serve up to a maximum prison sentence of 25 years and commonwealth departments fined up to $18 million for industrial manslaughter.
State and Territory Governments and Industrial Manslaughter
Tasmania and NSW do not have the offence of industrial manslaughter in their WHS Act. South Australia is in the final stage of having industrial manslaughter included in their WHS Act. But all other States (except Victoria) and Territories do have industrial manslaughter in their WHS Act. Victoria has industrial manslaughter in their OHS Act.
Penalties are on the way up
When you take into account all of the above it is clear that category 1 WHS penalties are definitely on the way up to levels that many businesses could not afford to pay and would make them insolvent.
The solution for all PCBU’s is to ensure that all risks in their workplace are eliminated or minimised so far as reasonably practicable and that happy state of WHS is maintained. Courtenell will be pleased to assist clients to achieve this target.
The heat is on.
References
Ref 1. https://www.safeworkaustralia.gov.au/doc/explanatory-memorandum-model-work-health-and-safety-legislation-amendment-offences-and-penalties-2023
Ref 2. https://www.safeworkaustralia.gov.au/doc/model-work-health-and-safety-act
7th September 2023
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