Work Health and Safety (Review Recommendations) Amendment Act 2024

The Work Health and Safety (Review Recommendations) Amendment Act 2024, implements legislative change from the 2022 Review of SafeWork SA, along with recommendations from the national 2018 Review of the Model Work Health and Safety Laws (Boland Review).

The Work Health and Safety (Review Recommendations) Amendment Act 2024, amends the Work Health and Safety Act 2012. The Amendment Act can be viewed here: Work Health and Safety (Review Recommendations) Amendment Act 2024 | South Australian Legislation

The below outlines the key legislative changes contained in the Work Health and Safety (Review Recommendations) Amendment Act 2024 which commence on 1 September 2024.

Formal Establishment of the SafeWork SA Advisory Committee

The SafeWork SA Advisory Committee is formally established to provide advice and recommendations to SafeWork SA and the Minister on work health and safety matters.

The Advisory Committee consists of 15 members including:

  • Minister for Industrial Relations and Public Sector (ex-officio)
  • Executive Director, SafeWork SA (ex-officio)
  • Chief Executive, Attorney-General’s Department (ex-officio)
  • Chief Executive Officer, ReturnToWork SA (ex-officio)
  • Presiding Member
  • 4 members representing the interests of employees
  • 4 members representing the interests of employers
  • 1 member representing the interests of victims and their families
  • 1 member representing the interests of work health and safety professionals.

The Advisory Committee has been operating as a Ministerial appointed Committee since April 2023.  The amendments formalise the membership and the role and functions of the Advisory Committee.

Prosecutions

Amendments relating to prosecutions have been made to:

  • extend the 12-month timeframe to 24 months after an act for a person to request the Regulator bring a prosecution for an industrial manslaughter offence or a Category 1 or 2 Offence
  • enable a request to be made within 12 months of a coronial report, or a coronial inquiry or inquest ending
  • requiring the regulator to provide written updates on investigations every three months to a person who has made a request until a decision is made on whether a prosecution will be brought.

More information can be found here.

Insurance or other indemnity against penalties

Amendments now prohibit a person (without a reasonable excuse) from entering into, providing or benefiting from an insurance contract or arrangement that purports to cover monetary penalties under the WHS Act.

Maximum penalty: $50 000.

If a body corporate commits the offence each officer of the body corporate is also taken to have also committed the offence if:

  • the officer authorised or permitted the body corporate's conduct constituting the offence; or
  • the officer was, directly or indirectly, knowingly concerned in the body corporate's conduct constituting the offence.

By 1 September 2024, all persons must not:

  • enter into a contract that purports to cover penalties
  • provide a contract that purports to cover penalties.

Entry Permit Holders

Amendments have been made to remove the requirement for work health and safety entry permit holders to provide a written report to SafeWork SA after exercising a right of entry to investigate suspected contraventions.

An entry permit holder may provide a report, and if so, SafeWork SA must consider what action (if any) to take and if action is taken, advise the entry permit holder of the action taken. Current requirements to consider whether it is reasonably practicable to notify SafeWork SA before entry occurs remains a requirement.

Amendments to enable work wealth and safety entry permit holders to take photographs, recordings and measurements when investigating a suspected work health and safety contravention, subject to existing confidentiality requirements and any other requirements imposed by regulation.

Entry Permit Holders may do any of the following:

  • Take measurements or conduct tests directly relevant to suspected contravention
  • Take photos and videos directly relevant to the suspected contravention
  • Bring equipment and materials reasonably necessary for measurements or tests

Photos or videos must, as far as possible, only record the relevant worker, another worker directly affecting the relevant worker, an inspector or emergency services worker, an EPH or someone hindering the work of the EPH or inspector.

Live streaming is not permitted.

Refer to Section 148 and the Privacy Act 1988 of the Commonwealth in relation to limits on the disclosure and use of information collected under this section

More information can be found here.

Confidentiality

Amendments have been made to the confidentiality provisions of the WHS Act to enable SafeWork SA to communicate more information about its regulatory activities with stakeholders, including victims of workplace accidents and their families.

Amendments enable the Regulator (Executive Director, SafeWork SA) or a person authorised by the Regulator to disclose information relating to a work health and safety incident to certain persons.

The new provisions operate as an exemption to confidentiality provisions under section 271 of the WHS Act, but does not create a right to access information. Instead, it gives the Regulator the discretion to consider and determine what information is appropriate to be released to certain persons including injured workers and families of workers who have died or have been incapacitated as a result of an incident.

Requests for the disclosure of information will only be considered where an incident occurs after 1 September 2024.

A family member of a person who is deceased as a result of an incident may request information relating to the incident that occurred prior to 1 September 2024.

Disclosure of information will only be considered where the disclosure will not prejudice the integrity of an investigation conducted under the WHS Act.

More information can be found here.

Dispute Resolution

Introduction of a conciliation, mediation, and arbitration model for work health and safety disputes where certain parties will be able to lodge disputes in the South Australian Employment Tribunal. The new model is aimed at ensuring there is a mechanism for the prompt resolution of work health and safety disputes

Amendments have been made by including new provisions to apply to disputes that remain unresolved at least 24 hours after a SafeWork SA Inspector has been appointed to assist in resolving the dispute.

If the dispute remains unresolved at least 24 hours after an inspector has been appointed, then a party to the dispute may give written notice of the dispute to the South Australian Employment Tribunal (SAET).

A WHS matter for the purpose of bringing a dispute to the SAET comprises any of the following matters:

  • access to information by a health and safety representative under section 70(1)(c);
  • a request by a health and safety representative for an assistant to have access to the workplace under section 70(1)(g);
  • a matter about work health and safety that is an issue to which Division 5 – Issue Resolution applies;
  • an issue about cessation of work under Division 6.

When commencing an action in the SAET, written notice of the dispute must be given. The notice must state each of the following matters;

  • the names of the parties to the dispute;
  • the workplace where the dispute exists;
  • the WHS matter the subject of the dispute;
  • if an inspector has been appointed to assist in the dispute, and if the decision made by the inspector is currently under review.

Once a notice has been received SAET will publish the notice on a website.

If a relevant union for a worker affected by the WHS matter is not named as a party to the dispute, the union may notify SAET in writing that they want to participate in the resolution of the dispute.

SAET will then deal with the dispute as it sees fit for the prompt settlement of the dispute.

This may include mediation, conciliation or arbitration. SAET may also make a recommendation or make an order (if the matter has been dealt with through arbitration). If there are reasonable grounds to believe an offence has been committed, they may refer the matter to SafeWork SA for investigation.

SAET may also review a decision that was made by an inspector which either confirms, varies or sets aside the compliance decision made by the inspector.

SAET may decide not to deal with the dispute as per section 102E of the WHS Act.

More information about the process of lodging a dispute can be found here.

Mining and Quarrying OHS Committee

Administrative support for the Mining and Quarrying Occupation Health and Safety Committee to be undertaken by ReturnToWorkSA.

Reviewable decisions

Amendments have been made to extend the eligible persons in relation to a reviewable decision.

More information can be found here.

Review

A review of the amendments is required to be commenced 2 years following the commencement of the laws.

The review must include an assessment of the following matters:

  • the extent to which amendments have contributed to improved health and safety of workers and workplaces;
  • the extent to which there has been an improvement in communication between the regulator and parties affected by workplace incidents, including victims and their families;
  • the extent to which dispute resolution processes have assisted in the settlement of disputes over health and safety issues;
  • (any other matter the Minister considers to be relevant to the review.

A report on the results of the review must be provided to the Minister and the Minister must cause a copy of the report to be laid before each House of Parliament within 12 sitting days after receiving the report; along with publishing a copy of the report.