Since February 2018, Boland has been in contact with those involved with the laws across Australia, including industry participants from all levels, expert academics and workplace safety lawyers. The Boland Report was generally supportive of the WHS laws’ current form and approach, however there were 34 recommendations delivered which aim to further the laws’ positive influence on health and safety.
A key recommendation in the report was the introduction of an industrial manslaughter offence such as is present in Queensland legislation. This recommendation followed extensive union advocacy and is in line with ‘increasing community concerns’ around workplace deaths.
The community’s increasing intolerance toward serious workplace incidents has been recently evidenced by NSW cases involving workplace deaths. Two PCBUs were charged with ‘category 2’ WHS breaches and both pleaded guilty, receiving initial fines of $300,000 and $75,000. The process of appeals revealed the fines were ‘manifestly inadequate’ and ultimately resulted in fine increases to $600,000 and $375,000 respectively. 1
The Boland Report finds that an industrial manslaughter-type offence would address the shortcomings of criminal law when dealing with workplace duties to deliver more tailored prosecutions. Industrial manslaughter-type offences exist in Queensland and the ACT, with Victoria developing a similar offence and the NSW opposition promising to introduce an industrial manslaughter offence if elected. The Boland Report recommends the implementation of a 'gross negligence' style industrial manslaughter offence. The State and Territory Ministers for Workplace Safety are scheduled to meet in late 2019 to discuss the recommendation.
Business groups are cautious of the severe penalties, including goal, which can be imposed for an industrial manslaughter-style offence. These stakeholders are also reluctant due to potential defensive practices associated with the offence, particularly given the likelihood of WHS laws prohibiting insurance against personal penalties.
Union rights & Healthy and Safety Representatives (HSRs)
Boland recommends delimiting HSRs’ power to bring a person to a workplace for the purpose of assisting with health and safety issues. Currently, union officials who come onto site to assist an HSR must also hold an entry permit under the Fair Work Act. 2 Boland believes that allowing union representatives on site to assist regardless of holding Fair Work permits would promote the efficiency of the HSR role. The Boland Report recommends that consultation with HSRs be the preferred method of consultation relating to WHS procedures, and Boland generally recommends an increased use of HSRs to promote WHS objectives and positive industrial relations.
Employers with more sophisticated safety arrangements supported the current system of Health and Safety Representatives, but small businesses often viewed it as impractical and over-prescriptive. There were some provided examples of the HSR framework lacking in effectiveness and clarity, such as inefficient HSR training, HSR rights to request assistance and rights to issue provisional improvement notices.
Worker unions emphasised the importance of WHS right of entry laws. Businesses, predominantly in the construction sector, held significant concerns about the ability of unions to misuse these rights.
There is ongoing litigation in this area which we think will strongly influence any legislative changes in this arena.
Psychological and discriminatory protection to improve
Despite strong support for the WHS laws’ efficacy, the report identifies room for improvement in the laws’ management of psychological risks. As Boland says, “the common view is that the model WHS laws do not sufficiently focus on psychological health and that the ‘how’ part of ensuring the psychological health and safety of workers is not clear.”3
The consultations revealed the incident notification requirements are not sufficiently clear in the context of psychological injuries and occupational diseases. They identified a lack of a notification trigger with these workplace issues, and confusion surrounding the terms ‘serious injury or illness’ and ‘dangerous incident’.
Workers and their representatives are also concerned with regulators’ lack of enforcement of WHS discrimination provisions.
Greater focus on small businesses
The framework for due diligence duties is reportedly working well, with large businesses developing cultures of safety throughout their hierarchies, including at the executive level. However, some small businesses and government departments were not clear on the definition of ‘officer’, and were unsure who owes a duty.
There were mixed views on the principles-based approach currently within the model WHS laws. Larger businesses value the flexibility the broad approach provides in being able to mould safety solutions specific to their workplace. However, small businesses with less resourcing dedicated to health and safety management would generally prefer more practical and explicit guidelines. Boland recommended the further development of WHS Codes of Practice to help these smaller businesses.
Most opinions favoured the current three-tiered approach of the model legislative framework: the WHS Act, the WHS Regulations and the Codes of Practice. Some participants expressed their concerns for the laws’ accessibility, noting the substantial length and complexity of the Regulations and the Codes of Practice. Boland favoured the detailed approach to safety duties to making the laws simpler and more accessible, finding the current structure to be working well.
The roles of PCBUs, unions and regulators
The principles of duties of care were supported across the board, although there was notable feedback that they were not consistently being enforced. In particular, the consultations revealed to Boland that there should be greater emphasis on upstream duty holders, particularly in the context of safety by design.
Many PCBUs were unclear on the extent of their duty when relying on services and advice. What level of verification does a company need to go through when they hire expert contractors to manage safety issues? Greater clarity may be needed about reliance on experts as a way of discharging or mitigating safety obligations.
Regulators identified some ambiguity in the extent of their powers. Most notably, they were unsure of their ability to share information across jurisdictional boundaries under section 155. Clarification was recommended to bolster the capacity of regulators to obtain information from outside their jurisdiction.
Feedback on the National Compliance and Enforcement Policy4 (NCEP) showed that the policy fell short of its objective of a consistent national regulatory approach. There was support for revising the policy to be more accessible and to address current uncertainties of the regulatory role. Boland recommends that the NCEP be reworked to include decision-making frameworks, aimed at providing uniformity and predictability.
Legal proceedings, penalties and insurance
The Boland Report comments on the possible disconnect between WHS offences and local criminal laws which undermine WHS objectives. In this regard the Boland Report examines State penalty laws which allow findings of guilt without a recorded conviction, and reduced fines for guilty pleas and claims of incapacity to pay.
The indemnification of individuals from health and safety fines is alleged to reduce the role of deterrence in preventing health and safety offences. Hence Boland recommends introducing an offence where duty holders enter into an insurance contract with insurance firms, unions, or other organisations to indemnify against WHS monetary penalties. This would be a major development if implemented, potentially reducing the appeal of an appointment as a Director of a company due to the possibility of an exposure to a fine.
The Boland Report expresses general support for the continued use of transparent enforceable undertakings. Boland does not recommend prohibiting outright the use of EUs where there has been a workplace fatality, as is the case in Queensland. She recommends that EUs be available in respect of fatalities where 'special circumstances' exist.
The Boland report notes that Unions support introducing a reverse onus of proof to ensure successful prosecutions. Prior to the introduction of the harmonised WHS law in 2011, Queensland and New South Wales had facilitative 'reverse onus' health and safety legislation, resulting in a large number of prosecutions. Boland does not support a reversal of the onus of proof, explaining that with increased penalties and the introduction of an industrial manslaughter offence, the current onus of proof is appropriate.
Overall, Boland found that the ‘overwhelming view’ is that the WHS model is working, with many calls for Victoria and Western Australia to join the harmonised regime.
WHS Ministers are expected to respond to the report late this year.
1 Attorney General for the State of New South Wales v Ceerose Pty Ltd  NSWCCA 35; Attorney General for New South Wales v Macmahon Mining Services Pty Ltd  NSWCCA 8.
2 Australian Building and Construction Commissioner v Powell  FCAFC 89.