Significant WHS reforms in South Australia

The Work Health and Safety (Review Recommendations) Amendment Bill 2024 (the Bill) was first introduced in Parliament on 16 May 2024 and has now passed both Houses of the South Australian Parliament. The changes will take effect on a day to be fixed by proclamation and will make significant amendments to the Work Health and Safety Act 2012 (SA) (WHS Act). The latest of those changes introduced a ban on insurance against penalties for breach of the WHS Act, following amendments made by the Greens. Our summary is below.

A new exemption to confidentiality requirements
The Bill inserts a new exemption to confidentiality requirements which will provide SafeWork SA (or person authorised) with a broad discretion to disclose information relating to an incident to persons, family members or interested parties with a direct connection to the incident, for example details of actions taken in response to a workplace accident.

Certain information cannot be disclosed, for example information that is commercial in confidence, or legally privileged, or which relates to an ongoing investigation, and cannot be given to a person who is, or who may be expected to be required to give evidence as part of an investigation or prosecution relating to the incident.

Amended limitation period for prosecutions that have not been brought
Where a prosecution has not been brought, a person who considers that an industrial manslaughter offence, a Category 1 offence or a Category 2 offence has been committed may make a written request to the Regulator that a prosecution be brought. This is to allow victims and their families to extend the existing time limit for making a prosecution request from 12 months to 24 months or make such a request within 12 months after a coronial report, or proceedings at a coronial inquiry or inquest.

The amendments also include extending the limitation period where a matter is referred to the Director for Public Prosecutions (DPP) for a review, in which case a prosecution may be commenced within 1 month following the provision of the advice to the regulator as to whether a prosecution should be brought.

A new jurisdiction to determine WHS disputes
The South Australian Employment Tribunal (SAET) is to be conferred with an expanded jurisdiction to deal with WHS disputes, about WHS matters between persons conducting a business or undertaking (PCBUs) and workers, health and safety representatives (HSRs) and/or relevant Unions. If the dispute remains unresolved at least 24 hours after SafeWork SA has been asked to appoint an inspector to assist in resolving the dispute, notice can be given to SAET.

The SAET will be empowered to resolve the dispute, including by mediation, conciliation or arbitration, making a recommendation or expressing an opinion, referring a matter to the regulator for potential investigation, or making any order it considers appropriate for the prompt settlement of the dispute. A relevant Union may give notice it wishes to be involved in resolution of the dispute and is then taken to be a party to it.

Other powers of the SAET include:

• review compliance decisions (e.g. a prohibition notice) made by a SafeWork SA inspector in relation to a dispute, including varying or setting aside a compliance decision
• dismiss a dispute if the SAET considers it is frivolous, vexatious, misconceived or lacking in substance
• power to order a party to pay costs in limited cases, for example those disputes which are vexatious or lacking in substance

WHS rights of entry to inquire into suspected contraventions
The Bill removes the requirement for WHS entry permit holders to provide a written report to SafeWork SA after exercising their entry rights. However, a permit holder may still choose to provide a report in which case SafeWork SA must advise of any action taken in response.

Additional rights for WHS entry permit holders
WHS entry permit holders, when undertaking an inspection in the workplace in relation to a suspected contravention of the WHS Act, will be able to:

• take measurements or conduct tests (including bringing and using equipment and materials) directly relevant to the suspected contravention; and
• take photos and videos directly relevant to the suspected contravention, avoiding ‘as far as reasonably practicable’ a photo or a video recording images or voices unless that person is:
  • a relevant worker; or
  • a worker at the workplace whose actions are directly affecting a relevant worker; or
  • an inspector or emergency services worker attending the workplace; or
  • a WHS entry permit holder attending the workplace.

The amendments make it clear that a photo or video must not be live streamed.

Increased penalties
The amendments will increase the maximum penalty for breaching an order of the SAET for dealing with a right of entry dispute from $50,000 to $100,000 in the case of a body corporate. The $10,000 maximum penalty for an individual is retained.

Other changes
Other changes under the Bill include:

• a new provision to clarify the interaction between the new dispute process in the SAET and the existing right to cease unsafe work under the WHS Act, making it clear that the new dispute process is not intended to impinge upon or reduce the existing right to cease unsafe work;
• an amendment to provide that a representative of a PCBU or a worker has a right to seek an internal review of a reviewable SafeWork SA decision;
• the formation of a tripartite advisory committee to provide a forum for high-level stakeholder advice on how to improve SafeWork’s operations; and
• to ensure that any policy of insurance or other indemnity against fines and penalties that arise from breaches of the WHS Act, to the extent it exists, is void.

Implication for businesses and undertakings
Once in effect, the amendments will bring significant changes to WHS laws in South Australia. Employers and businesses should commence a review of relevant policies and industrial management plans to ensure these are adapted to the timing of the changes, including with respect to rights of entry by WHS permit holders.  As always, businesses should seek advice about what impacts may be specific to them, and develop or review any industrial plans and strategies they may have for managing WHS disputes in the workplace.