Overview of Boland Final WHS laws Report for the health and safety profession
Kym Bills, Chair SIA College of Fellows
David Clarke CEO, SIA
In November 2017, former Executive Director of SafeWork SA, Marie Boland, was appointed by Safe Work Australia to conduct the first independent review of the model Work Health and Safety laws. Reviews are scheduled every five years from when the last of the seven conforming jurisdictions implemented the model WHS laws (South Australia and Tasmania implemented on 1 January 2013). The Boland final report dated December 2018 is with WHS Ministers for consideration but was released in late February 2019: https://www.safeworkaustralia.gov.au/doc/review-model-whs-laws-final-report In our view it is a well written and researched document demonstrating significant consultation, insight, common sense and pragmatism.
The 195-page Boland report is divided into seven chapters - Chapter 1: Legislative framework; Chapter 2: Duties of care; Chapter 3: Consultation, representation and participation; Chapter 4: Compliance and enforcement; Chapter 5: National Compliance and Enforcement Policy; Chapter 6: Prosecutions and legal proceedings; and Chapter 7: Model Work Health and Safety Regulations.
It has 8 appendices including the terms of reference, relevant case law and a bibliography. Its 34 recommendations are of varying importance but well worth consideration by safety professionals.
In her covering letter to SWA Members, Ms Boland highlights that she understood her responsibility to maintain the integrity of the model WHS Act, Regulations and Codes and notes that she did not examine guidance material. She concludes that the model WHS laws are largely operating as intended with the three-tier framework effective and that support for the harmonisation objective remains strong – indeed most parties consulted urged Western Australia and Victoria to implement the model WHS laws. She reports: “It is clear to me from the feedback received during this Review that the model WHS laws are, for the most part, working as intended, but they are still settling.”
National Compliance and Enforcement policy
The issue of consistency of application and enforcement is in the view of the Institute one of the most important and least addressed issues in relation to WHS law, with the predominance of focus in recent years being on the modelling of the law. While the model laws are extremely important, health and safety professionals and business leaders throughout the country– particularly those in enterprises which straddle state and territory boundaries – most commonly advise the Institute of problems in inconsistency of application of regulation in a wide range of areas rather than the remaining narrow variations in legislation.
Given these concerns, this was a welcome recurring theme during the Review. A major outcome of this was the recommendation that the National Compliance and Enforcement Policy be revised to assist regulators and inspectors. Many recommendations revisit how the model WHS Regulations support the object of the model WHS Act (s3), particularly in relation to priority industries identified in the Australian Work Health and Safety Strategy 2012-22.
Consistent with the currency of the national discourse on psychological health, Ms Boland sees new regulations dealing with psychological health as a priority.
Accessing Australian Standards
Ms Boland received wide ranging comments on Australian Standards and their complex relationship with codes, and with the law. The recent work by the Institute outlining aspects of this issue focused on the unusual structural framework within which standards come to the Australian market, and inequities in the system as a result. The Institute has been advocating for the freer access to standards to resolve these porblems. Howevr , we have also advocated that if more open avaliability of standards to business, at more reaonsable costs, cannot be achieved, then the other option is to separate the responsibility to comply with standards from WHS law. This is the approach Ms Boland’s recommendation have taken, by:
(a) proposing removal of references to standards in model laws; and
(b) specifically amending reg 15 (‘reference to Standards’) to clarify that compliance is not mandatory.
Other recommendations seek to assist:
All of the foregoing is consistent with the Institute’s views over many years and is largely uncontroversial.
Further issues and recommendation which will draw further discussion and debate
More controversial than those previously outlined, are the following recommendations and discussion which are likely to will draw increased focus and which we invite the profession to reflect upon:
The principle where more than one person (PCBU) can have a duty (WHS Act s16) was seen by those consulted as particularly problematic, particularly combined with the duty of multiple duty holders to consult, cooperate and coordinate (s46). Ms Boland states: “This is an area where the laws are not operating as intended. I recommend the development of a new model Code providing practical guidance for PCBUs on how to meet the obligations”.
● The HSR Framework
Dealing with issues associated with genuine workforce consultation, it is noted that “the HSR framework is having mixed results”. Ms Boland states: “In my view, the rights of an HSR to bring in a person with appropriate experience and knowledge to assist them should not be restricted if that person is also a union official … I have also recommended that HSRs should be entitled to choose their own course of training where that training is approved by the regulator. However, they will need to agree timing and costs with the PCBU.”
We can see some concerns being raised by employers in relation to these recommendations because of the small minority of more militant union officials who may seek to misuse access. The Boland report proposes that where employers and workers cannot agree, inspectors can still be called in to assist but they are still not able to make a decision - Ms Boland’s proposal is that after 48 hours a dispute be referred to the relevant court of tribunal.
Applying CPI to penalties is straightforward. However, Ms Boland also recommends: “that persons or organisations that are required to pay penalties under the model WHS laws be unable to recover that cost through insurance or indemnification”. While this will probably have widespread public appeal, it is likely to be viewed very negatively by business and industry (especially by company directors). Australian business is likely to make a case that this approach would have the unintended consequence of discouraging many people from acting as company directors if they may face serious personal penalties even if they exercise their high-level oversight roles carefully and professionally, and that overall this would have negative consequences for the Australian economy.
● Duty Holders
Ms Boland recommends amendments to the WHS laws: “to include that a duty holder commits a Category 1 offence if the duty holder is grossly negligent in exposing an individual to a risk of serious harm or death”.
● Industrial manslaughter
Building on the emergence of industrial manslaughter already in two Australian jurisdictions and overseas, Ms Boland recommends that: “a new offence of industrial manslaughter be included in the model WHS laws … where there is a gross deviation from a reasonable standard of care”. This is likely to have strong public support, is in line with trends here and overseas, (Ms Boland’s argument is that because the ACT and Queensland have already introduced IM provisions and other jurisdictions are considering it, a new offence would “enhance and maintain harmonisation of the WHS laws”) but still carries significant tension and debate particularly around the fit of such laws in existing legislation, and arguments about unintended consequences. Ms Boland touches on these issues including noting that existing Criminal law manslaughter provisions are not always easy to apply in the case of workplace deaths. She reports that the ACT has introduced IM provisions in their Crimes Act based on a test involving reckless or negligent conduct while Queensland has placed IM in the WHS Act based on a test involving negligent conduct. She reports that Australian Government Departmental advice to the Review did not support new IM laws but that the reviewer could consider gross negligence as a trigger for Category 1 offences (as she has separately recommended).
The Institute recognises the IM debate as highly contentious, emotive and highly politicised. We also recognise that the Boland report is another step in what is a much broader trend towards almost certainly bringing these laws into effect across the board in Australia. More strongly than any individual element of WHS law (such as IM which is debated in a wider community context than just helath and safety) our strongest commitment is to the harmonisation of the law, and the consistency of its application of it across jurisdictions so that business, the profession and the workforce can have clarity.
As these laws are being examined for implementation, the Institute's focus will be on providing practical input to best approaches. For example, one mechanism to avoid potential problems between WHS laws and the general Criminal law and not undermine WHS harmonisation is to ensure any agreed IM provisions are embedded within the relevant jurisdiction’s Crimes Act in a manner similar to the ACT.
There will also continue to be strong views and discussion with respect to the scope of what may be captured by industrial manslaughter and the test needed to prove the offence (ie negligence, recklessness etc).
Overall, we commend Ms Boland on her Final Report and look forward to the debates that will inevitably occur with respect to some recommendations and to Ministerial responses to them all.
The profession should take note of the report, and we recommend support for the vast bulk of its recommendations including calls for further investigation and analysis.
For a brief overview of the report see here.