As we kick off another financial year, we are pleased to share our latest update, encompassing critical workplace safety developments in Q3 and Q4 of FY24, together with a review of some of the key safety developments and takeaways from FY24.

NEW REQUIREMENTS IN VICTORIA FOR INCIDENT NOTIFICATION FOR PLANT

In Victoria, the Victorian Occupational Health and Safety Regulations 2017 (Vic) and Equipment Public Safety Regulations 2017 (Vic) have been amended to include new types of plant and equipment that employers will need to notify WorkSafe about if they are involved in an incident. The amendments came into effect on 1 July 2024.

Previously, the list of plant that were prescribed as notifiable was limited. However, under the Regulations employers and self-employed persons must now notify WorkSafe when they become aware of an incident that immediately or imminently exposes a person to a serious risk to their health or safety due to collapse, overturning, failure, or malfunction of/damage to a range of commonly used equipment including pressure equipment, tractors, earth moving machinery, scaffolds and turbines.

VICTORIAN ROAD SAFETY EQUIPMENT MANUFACTURER FINED $650,000

Saferoads Pty Ltd was prosecuted by WorkSafe Victoria for breaches of sections 23 (Charge 1) and 26 (Charge 2) of the Occupational Health and Safety Act 2004 (Vic).

Charge 1 alleged that Saferoads failed to ensure persons other than its employees were not exposed to health and safety risks and Charge 2 alleged that Saferoads failed to ensure its workplace and the means of entering and leaving it were safe and without risk to health.

A summary of the background of this matter is as follows:

• On 26 November 2021, a delivery driver arrived at Saferoad’s workplace with a flatbed truck which was loaded with 24 barriers weighting approximately 925kg.
• Saferoads outsourced the activity of transporting barriers to and from the workplace to third party delivery drivers.
• Upon arriving at Saferoad’s workplace, the driver was greeted by an employee of Saferoads who assisted the driver with unloading the barriers.
• The driver began to release the load restraints holding the barriers to the flatbed truck.
• Once the load restraints were removed the Saferoad’s employee began to unload a set of barriers with a forklift whilst the driver stood nearby.
• During the unloading process a barrier destabilised and fell from the back of the truck. The barrier struck and crushed the driver who was standing in the vicinity of the forklift.

Saferoads pled guilty to both charges admitting that it had:

1. failed to provide a safe workplace by ensuring that drivers were separated from the area during the task of loading and unloading; and
2. failed to maintain a safe system of work for loading and unloading road safety barriers by setting out measures in a Safe Work Method Statement and Standard Operating Procedures and ensuring drivers had been instructed and trained in relation to the same.

Despite Saferoads having no prior conviction, being of good character and experiencing significant financial hardship, it was sentenced to pay a fine of $225,000 with respect to Charge 1 and $425,000 with respect to Charge 2, as well as costs of $4,207.

This case emphasises the importance of ensuring all occupational health and safety policies and procedures are adequately implemented and adhered to by all employees. It is not sufficient for employers to simply rely on having written occupational health and safety policies and procedures in place – instead, they must be implemented by providing all relevant people with the necessary training, instruction and supervision in relation to those written policies and procedures.

CRIMINAL OFFENCE OF INDUSTRIAL MANSLAUGHTER ADDED TO THE WORK HEALTH AND SAFETY ACT AND INCREASES TO OTHER PENALTIES

Further provisions from Closing Loopholes No.1 have continued to come into effect:

• Taking effect on 1 July 2024, a new offence of industrial manslaughter for the Commonwealth Work Health and Safety Act 2011 has been added carrying maximum penalties of $18 million for bodies corporate or the Commonwealth and 25 years’ jail for individuals, reflecting manslaughter penalties in the Criminal Code.
• From 1 July 2024, there will also be increased penalties under the Work Health and Safety Act 2011.

INDUSTRIAL MANSLAUGHTER LAWS IN FINAL TWO AUSTRALIAN JURISDICTIONS

New South Wales and Tasmania were the only jurisdictions in Australia to not legislate the criminal offence of industrial manslaughter.

New South Wales

On 20 June 2024, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 was passed by the New South Wales Government, amending the Work Health and Safety Act 2011 (NSW) to now establish the offence of industrial manslaughter.

Under the new laws, a person commits industrial manslaughter if they have a health and safety duty and they are a Person Conducting a Business or Undertaking (PCBU) or are an officer of a PCBU (importantly, the offence cannot be committed by workers).

An officer is a person who makes decisions, or participates in making decisions, that affect the whole, or a substantial part, of a business or undertaking and has the capacity to significantly affect the financial standing of the business or undertaking.

A PCBU or officer of a PCBU commits an offence under the legislation in circumstances where they fail to comply with their health and safety duty and cause the death of a worker or another individual to whom a health and safety duty is owed (or in the case of an officer to whom the PCBU owes a health and safety duty). Importantly, the person must engage in the conduct with “gross negligence”.

Gross negligence may be evidenced by the fact the conduct was substantially attributable to:

• inadequate corporate management, control or supervision of the conduct of one or more authorised persons; or
• failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

Importantly, there is no limitation period for proceedings for industrial manslaughter offences under the legislation.

The new offence imposes a maximum penalty of 25 years’ imprisonment for individuals and $20 million for bodies corporate. This is currently the highest fine for a workplace health and safety breach in Australia.

These new laws will commence in New South Wales on a date to be fixed by proclamation.

Tasmania

On 19 June 2024, the Tasmanian Work Health and Safety Amendment (Safer Workplaces) Bill 2024 (24 of 2024) (Tas) was passed through the House of Assembly (or the Lower House).

In essence, this Bill seeks to amend the Work Health & Safety Act 2012 (Tas) to include an offence if a person commits industrial manslaughter. A person is defined in the Bill to include a PCBU and an officer of a PCBU.

Importantly, the person must have been either negligent about the cause of death by their conduct or reckless regarding the risk to the individual of death or serious injury or illness.

The maximum penalty for an offence under the Bill is 21 years’ imprisonment for individuals and $18 million for bodies corporate. The Bill will need to pass through Tasmanian Parliament’s Upper House and will then commence on the day it receives royal assent.

These new laws serve a timely reminder for employers to ensure they have a robust work health and safety management system in place to advise on any legal compliance gaps and ensure duties and obligations under the relevant occupational, health and safety laws throughout Australia are met. In addition, we recommend that employers implement and review systems for providing information within the company to ensure that officers are receiving the necessary safety knowledge to provide other employees with ongoing information, instruction, supervision and training.

PROHIBITION OF INSURANCE FOR WHS FINES IN SOUTH AUSTRALIA

The prohibition of insurance and indemnities for WHS fines has long been in place across many jurisdictions, specifically Victoria, New South Wales, Queensland, Western Australia and the Australian Capital Territory.

The South Australian Work Health and Safety (Review Recommendations) Amendment Bill 2024 (SA) has now been passed and amends the Work Health and Safety Act 2012 (SA) (Act) to prohibit employers from taking out insurance against fines and penalties for breaching the Act.

The changes provide that a person must not enter into a contract of insurance or take the benefit of a contract of insurance or other arrangement that will insure or indemnify them for a liability or monetary penalty under the Act. Any terms of a contract of insurance or indemnity will be void if it purports to insure or indemnify a person for a liability arising under the Act.

The maximum penalty for contravening this prohibition in South Australia is $50,000.

Tasmania and the Northern Territory are now the only jurisdictions which do not have legislation prohibiting WHS fines.

SAFEWORK NSW’S PSYCHOLOGICAL HEALTH AND SAFETY STRATEGY 2024-26

The NSW regulator for work health and safety, SafeWork NSW, has released its strategy to support employers to prevent psychological harm by managing psychosocial hazards and complying with their legislative obligations.

Importantly, SafeWork NSW has indicated that it will increase its focus on compliance given its previous strategy providing information and tools to workplaces to provide a psychologically healthy and safe workplace. Ultimately, this will mean SafeWork NSW will increase regulatory action with inspectors completing Psychosocial WHS Checks when visiting businesses, setting a target of an increase in planned inspector visits by 25% per year between 2023 to 2026.

In turn, SafeWork NSW has made it clear that it may prosecute workplaces that repeatedly do not comply or have seriously breached WHS laws.

SafeWork NSW has identified a focus on workplaces, industries and workers at greater risk of psychological harm being education and training and healthcare and social assistance.

Employers can achieve a psychologically safe and healthy workplace by designing work using a risk-based approach.

Specifically, employers can take steps to:

• identify the things that could cause harm and consider the potential risk;
• consult with their workers on things that could cause harm and ways to manage risks;
• implement control measures to eliminate and minimise risks;
• monitor worker safety to ensure control measures are working; and
• review the design of work regularly.

Practically, employers should implement a written psychosocial hazard prevention plan for certain psychosocial hazards in the workplace, setting out the measures to control the risk and an implementation plan for the control measures.

A copy of SafeWork NSW’s Psychological Health and Safety Strategy 2024-2026 can be accessed here.