On 24 June 2019, Safe Work Australia (SWA) released the Consultation Regulation Impact Statement (CRIS) in relation to the Recommendations of the 2018 Review of the Model WHS laws (2018 Review).
The 2018 Review Final Report was released in February this year presenting the government and State WHS Ministers with 34 recommendations for change. The Review found that the Model WHS Act is working largely as intended, however some areas are causing confusion amongst stakeholders who consider the law to be overly complex.
SWA is now seeking feedback on the impacts of implementing the recommendations and proposed alternative options for addressing problems identified in the 2018 Review. SWA has asked interested parties to provide supporting evidence on the impact of implementing the 2018 Review Recommendations in order to evaluate the anticipated costs and benefits.
The CRIS focuses on 12 recommendations of the 2018 Review that will have a considerable cost and benefits to stakeholders. Of those 12 recommendations, AMMA is responding to those recommendations of significant concern to members in the resources and energy industry which include:
- Recommendation 8: Workplace entry of union officials providing assistance to an HSR
- Recommendation 15: Remove 24 hour notice period for entry permit holders
- Recommendation 23a: Enhance Category 1 offence
- Recommendation 23b: Create an industrial manslaughter offence
Right of entry laws
AMMA has long advocated for improvements to the right of entry laws which are regularly proven to be an unnecessary impediment to productivity, and sometimes even freedom of association and safety, in the workplace.
Too often, rights under WHS laws have been abused and used as a means to achieve industrial relations objectives, undermining industrial relations legislation and genuine safety issues at the workplace. Union officials abusing their entry rights under WHS laws for industrial purposes, for example, is an ongoing concern for resources and energy employers.
New provisions that allows unions’ free entry and access to workplaces will only further undermine health and safety practices and promote conflict and disputation between parties. Conflict and disagreement in the workplace has a negative impact on workplace culture which in turn increases exposure to health and safety risks.
It is AMMA’s position that any recommendations that allow the influence of third parties such as trade unions unfettered access to workplaces to deal with safety matters should not come at the expense of business operations nor the independent specialist WHS Regulator.
Industrial manslaughter and Category 1 offence
AMMA’s view, consistent with other business representative groups, is that there are existing, appropriate avenues within Australian criminal law for individuals to be prosecuted for gross negligence that has led to a workplace death. A framework that focuses on punitive measures to health and safety compliance diminishes an organisations’ safety culture.
The introduction of more punitive measures to compliance will be detrimental to workplace safety culture as the focus shifts from a proactive risk-based approach aimed at preventing contraventions of WHS laws towards seeking to attribute blame for an outcome that in most instances is permanent.
AMMA strongly opposes the new fault element for Category 1 offence and the introduction of an offence of industrial manslaughter in workplace health and safety laws. The punitive nature of these recommendations from the 2018 Review have been a controversial concept and is largely rejected as unnecessary and divisive by the business community.
AMMA is currently preparing its submission due on 5 August 2019. For further information about the submission or the 2018 Review of Model WHS Laws contact [email protected].
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