Recent work health and safety developments

All employers should now have implemented measures to discharge their obligation to take reasonable steps to eliminate sexual harassment and other unlawful conduct in the workplace given the Australian Human Rights Commission’s enforcement powers for the positive duty came into effect on 12 December 2023 and to manage liability under the work health and safety (WHS) laws (see our checklist). There have been a number of further recent developments across the Australian WHS jurisdictions, both in relation to psychosocial hazards and other reforms, that employers should be aware of.

Further to our earlier article, WHS regulators continue to prosecute employers and management over sexual harassment matters. For example, on 26 October 2023, WorkSafe Victoria obtained convictions under the Victorian WHS laws against two coffee shop franchisees and their manager for failing to provide a safe workplace due to workplace sexual harassment. Fines totalling $290,000 were ordered against the three defendants. As a workplace hazard, sexual harassment can result in personal and corporate liability under WHS laws, as well as under discrimination legislation.

A summary of the key recent WHS changes follows.

- Psychosocial hazard reforms: further to our earlier article, all harmonised states and territories (that is, all Australian states and territories except for Victoria) have now either implemented or committed to implementing a requirement to manage psychosocial risks. As the last harmonised state to do so, South Australia’s psychosocial regulations will commence in December 2023.  

In Victoria, psychosocial hazards are already the subject of prosecutions under the Occupational Health and Safety Act (OHS Act) (see above) given the requirement for employers (and others) to provide a working environment that is safe and without risks to health (so far as is reasonably practicable) extends to consideration of a worker’s psychological health. In addition, amendments to the OHS Regulations are still pending.If passed, these Regulations will:

• require employers to regularly report specific psychosocial complaints (including sexual harassment) to WorkSafe Victoria; and
• require employers to predominantly use structural controls over information, instruction or training to address psychosocial risks in the workplace (unless no structural controls are reasonably practicable).

​​> What should employers do? Employers should be assessing psychosocial hazards and consulting with employees to ensure that psychosocial hazards have been appropriately identified, and steps are being taken to control associated risks. One method to assess psychosocial hazards is to undertake the People At Work assessment, which is a tool jointly funded by the Australian WHS regulators.  

- Incident notification requirements: in July 2023, Safe Work Australia commenced consultation into options for amendments to the requirements for notification to the regulator under the model WHS legislation. The consultation arose from gaps that had been identified in the existing notification requirements, and considers options including:

• immediate reporting of suicide, attempted suicide or deaths related to workplace psychological harm: immediate notification of psychosocial hazards relating to workplace violence; and
• six-monthly periodic reporting of bullying and harassment (as a psychosocial hazard).
• The proposals for reporting of bullying and harassment contain different options based on severity of incidents and defined categories of conduct. It remains to be seen what extent and nature these reforms may take.
• Separately, since 9 June 2023, persons conducting a business or undertaking (PCBU) in the ACT are now required to notify WorkSafe ACT of a sexual assault incident, which is a workplace incident or suspected incident that exposes a worker or other person at the workplace to sexual assault.

> What should employers do? Employers should amend their incident notification forms, procedures and policies to ensure they are appropriate for reporting workplace psychological harm, including from bullying and sexual harassment.

- Prohibition on WHS insurance and indemnities: the ACT recently amended the Work Health and Safety Act 2011 (ACT) to prohibit insurance and indemnities against WHS penalties. The ACT has now joined NSW, Western Australia, Victoria and the Commonwealth in implementing such a prohibition.

> What should employers do?  Employers should review template deeds and contracts to ensure any insurance and indemnities in respect of WHS penalties are amended to avoid the entire agreement or specific clauses being unenforceable.