Work Health and Safety (Review Recommendations) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:48): Obtained leave and introduced a bill for an act to amend the Work Health and Safety Act 2012 and to make related amendments to the Fair Work Act 1994. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:48): I move:

That this bill be now read a second time.

I am very proud to rise today to introduce the Work Health and Safety (Review Recommendations) Amendment Bill 2024. One of the government's most important industrial relations commitments of the last election was to undertake a root-and-branch review of the state's work health and safety regulator, SafeWork SA. That independent review was conducted in the second half of 2022 by John Merritt, a widely respected and former director of WorkSafe Victoria, with decades of experience in health and safety regulation.

The independent review received submissions from a wide cross-section of the community, including unions, business associations, health and safety professionals, and the families of workers who had lost their lives at work. Mr Merritt conducted 55 separate meetings with different individuals and groups involved in our health and safety system. The independent review was released in January 2023 and made 39 recommendations to government. The vast majority of those were accepted either in whole or in principle, and the government set to work consulting on legislative reforms recommended by the review.

The bill before us is the product of an extensive consultation process over the past 18 months. That process began with the review itself and has included a public discussion paper, a consultation draft bill, and many discussions with key stakeholders, including business associations and trade unions.

The end result of this bill is perhaps the most significant and important package of reforms to our health and safety system since the introduction of the current Work Health and Safety Act in 2012. This bill is designed to make South Australian workplaces safer. It is designed to provide a practical pathway to resolve disputes over health and safety issues and fixing safety problems at an early stage before serious injuries or even workplace deaths occur. It is designed to address a longstanding structural defect in our legislation which has kept workers in the dark about what action is being taken by SafeWork SA and which has caused significant distress to the families of workers who have lost their lives at work.

One of the clear outcomes of the independent review is that SafeWork SA cannot do this job alone. No regulator, no matter how well resourced, can be in every workplace across the state at once. That is why SafeWork SA needs to work closely with key stakeholders, like business associations, like trade unions, and like health and safety professionals, to project its influence, educate businesses and workers about health and safety, and to target noncompliance.

A key recommendation of the review was the formation of a tripartite advisory committee to help build stronger relationships between SafeWork and the community and to provide a forum for high-level stakeholder advice on how to improve SafeWork's operations. The SafeWork SA Advisory Committee was established by the government shortly after the release of the independent review and has been operating effectively for the past 12 months.

This bill inserts part 1, division 5, to formally codify the constitution and functions of that committee as a permanent feature of the WHS Act. I take this opportunity to sincerely thank all of the stakeholder groups currently represented on the committee for their valuable contribution over the past 12 months and look forward to continuing to work with the committee to improve health and safety in South Australia.

Turning to the independent review's recommendation that the state's industrial umpire, the South Australian Employment Tribunal (SAET), be given a greater role in helping to resolve disputes about work health and safety matters. Nobody benefits from intractable workplace disputes. Ensuring that all parties have access to practical dispute resolution systems supports a harmonious industrial environment and encourages the resolution of safety issues before workplace injuries occur.

The bill inserts part 5, division 7A, to provide jurisdiction for the SAET to deal with work health and safety disputes. Division 7A is heavily modelled on existing amendments made in 2017 to Queensland's work health and safety laws. The Queensland model has now operated successfully for nearly seven years. This model has not produced a flood of litigation. Indeed, I am advised that there have been less than 10 applications to the Queensland Industrial Relations Commission each year since these amendments were made. Importantly, the SAET's role under this model is not about imposing penalties or punishing employers; instead, it is about helping to resolve disputes about health and safety issues and making workplaces safer going forward.

To encourage the resolution of disputes between the parties at a workplace level, the bill provides the dispute cannot be notified to the SAET until at least 24 hours after the regulator has been asked to appoint an inspector to assist in resolving the dispute. Any party may notify a dispute to the SAET, and that includes the employer as well as the relevant worker, health and safety representative or union. The SAET will be empowered to deal with the dispute in any way it thinks fit for the prompt settlement of the dispute. That may include the SAET conciliating or mediating the dispute or making a recommendation or expressing an opinion to the parties.

If necessary, the SAET will have the power to arbitrate the dispute by making any order it considers appropriate for the prompt settlement of the dispute. That could include, for example, an order that a person conducting a business or undertaking takes steps to address the health and safety issue relating to the dispute. The SAET will also have the power to review a compliance decision made by a SafeWork SA inspector in relation to the dispute. This could include, for example, varying or setting aside a prohibition notice put in place by an inspector. In dealing with disputes, the SAET will have its usual procedural powers, including the ability to require attendance at a conference, to order disclosure and to make interim orders.

If the SAET resolves a dispute by arbitration then the parties must comply with any order the SAET makes. If a party breaches an order, either SafeWork SA or a party affected by the breach may apply for a penalty to be imposed for that breach. Consistent with existing provisions within the WHS Act, any penalty ordered is payable only to the state. However, if a party affected by a breach has been put to the cost of enforcing the SAET orders, they may receive an order for their reasonable legal costs of the enforcement action. The SAET will also have the power to dismiss a matter without conducting a hearing or a conference where it is satisfied the matter is frivolous, vexatious or lacking in substance.

Consistent with other industrial proceedings in the SAET, parties will generally bear their own costs of a dispute; however, the SAET will have the power to order payment of legal costs if it is satisfied a party has acted unreasonably or vexatiously. The government has confidence the SAET will bring to this new jurisdiction the same practical approach to the resolution of workplace issues that it currently exhibits in thousands of industrial and workers compensation matters each and every year.

A consequential amendment is made with the insertion of section 85A to clarify the interaction between this new dispute process and the existing right to cease unsafe work under the act. This amendment makes clear that, although the SAET may deal with the dispute about the cessation of unsafe work under division 7A, the ability of the new dispute process is not intended to impinge upon or reduce the existing right to cease unsafe work. The right to cease unsafe work is an essential legislative safeguard to protect workers' safety. If a worker or a health and safety representative is confronted with an immediate or imminent health and safety threat, there is no requirement that they must notify or participate in dispute with the SAET before they can exercise that right.

The independent review recommended that South Australia follow the lead of other jurisdictions to make clear that entry permit holders may take measurements and recordings relevant to a safety contravention. It is in the interests of the entire community that, where there is a dispute about a health and safety matter, the most accurate information is available to SafeWork SA and, if necessary, to the SAET. Workplace safety is not assisted by a subjective 'one person said, the other person said' debate over what was observed during a worksite visit, particularly when the objective photographic or video evidence could be available to clearly resolve the dispute.

The bill amends section 118 to provide a right for entry permit holders to take measurements, tests, photos and videos directly relevant to a suspected health and safety contravention. The bill includes strong safeguards around these powers. It expressly prohibits the use of live streaming and provides that, insofar as is reasonably practicable, a photo or video must not record the image or a voice of a person unless they are a relevant worker, a worker whose actions are being directly affected by a relevant worker, or an inspector or emergency services worker attending a workplace.

The 'reasonably practicable' exception is intended to address situations where a permit holder cannot reasonably avoid other persons being included in a photo or a video. This may, for example, include where the worksite is a public place with pedestrian foot traffic. There are serious consequences for the misuse of these powers. Photos and videos are subject to strict confidentiality requirements under section 148, and a breach of these requirements can result in significant penalties and the potential revocation of entry permits.

The bill also provides for a review in certain areas by the Director of Public Prosecutions. When the model Work Health and Safety Act was developed, a clear policy decision was made that only the regulator would be empowered to bring criminal prosecutions for offences under the act. However, it was also understood that a safeguard was needed to ensure that, where victims and their families believed actions by the regulator were inadequate, the regulator's decision in relation to a potential prosecution could be reviewed. That is reflected in section 231 of the act, which provides a process where a person may make a written request to the regulator for a prosecution, and if no prosecution is undertaken, may request a review of that decision by the Director of Public Prosecutions (the DPP).

However, since the WHS Act was passed in 2012, multiple inquiries, including the independent review, have found that the existing section 231 framework is not fit for purpose due to the very limited time frame it imposes on victims and their families. Take as one stark example, the situation faced by Keith Woodford following the tragic murder of his wife, nurse Gayle Woodford, whose case was the subject of an independent review commissioned by this government in 2002 by the Hon. John Mansfield AO KC.

Keith was only informed of SafeWork's decision not to commence a prosecution for a health and safety offence in relation to Gayle's death a few days before the statute of limitations expired. By then, Keith's right under section 231 to formally request a prosecution had already expired and, even if that right could have been exercised, there was no practical way the DPP could have properly considered the evidence and provided advice before the limitation period was up.

To be clear, this is not a criticism of SafeWork in taking time to make a decision about the prosecution. Work health and safety investigations are notoriously complex and, in cases involving a workplace death, it can be reasonably expected a decision about a prosecution may not be made until close to the limitation date. However, what this case illustrates is that what section 231 currently holds out to victims and their families is a right of review which may simply not be able to be used. The situation faced by Keith Woodford was unacceptable and the amendments made in this bill will ensure it cannot happen again.

The bill amends section 231 to clarify that a request to the regulator for a prosecution can be made at any time up until the expiry of the statute of limitations, including after a coronial inquest into a workplace death. The bill also amends section 232 to provide that if a matter is referred to the DPP for a review, then a prosecution may be commenced within one month of the date of the DPP providing the advice to the regulator on whether a prosecution should be brought. This means that if a family is only notified of a prosecution decision very late in the process, they will still have the ability to request a review by the DPP, and the DPP will have an opportunity to properly consider all the evidence before providing advice.

Multiple inquiries, including the independent review, have shown that the current confidentiality provisions in section 271 of the act have cloaked SafeWork SA on occasions in a shroud of secrecy. For far too long, SafeWork SA has been a place where a health and safety complaint goes in and a decision about a potential compliance action or prosecution comes out, but where the necessary internal reasoning process is often entirely opaque to the outside observer. This has caused significant distress, particularly to families who are seeking information from SafeWork SA to try to understand the circumstances of a loved one's death at work.

While there are very important reasons for confidentiality to apply, as it stands, the balance has not been properly struck. If stakeholders affected by work health and safety incidents cannot understand how SafeWork makes a decision, they cannot reasonably be expected to have confidence in those decisions. The longstanding problems caused by section 271 will be addressed in this bill.

The bill inserts a new section 271A which provides the regulator with a broad discretion to disclose information relating to an incident to a person affected by the incident. This includes people such as the injured worker or their family, the person conducting the business or undertaking, other workers at the workplace affected by the incident, or a relevant union.

Disclosure is subject to safeguards, including that information cannot be disclosed if it would jeopardise an investigation, or reveal confidential legal advice or commercially confidential material. Disclosure also cannot be made to a person who may be a witness in a prosecution. Decisions about the disclosure of information will be guided by a written policy published on the SafeWork website, which will be developed in consultation with members of the SafeWork SA Advisory Committee, including representatives of victims and their families.

It is important to be clear that this amendment does not compel the regulator to disclose information where the regulator believes disclosure would be inappropriate. What this amendment does is remove the longstanding statutory barrier to transparency and put SafeWork in the same position as other prosecuting authorities like South Australia Police and the DPP in terms of the information it may provide to affected parties. It is the government's hope that this amendment will provide greater comfort to victims and their families and help build public confidence in the regulator's decision-making processes.

This bill also includes a number of more minor amendments. The bill amends section 117 to remove the requirement for a written report to be provided to SafeWork SA after every exercise of entry rights, consistent with the recommendation of the independent review. A permit holder may still choose to provide a report, in which case SafeWork must advise of any action taken in response.

In that context, I note the government has not accepted a recommendation of the review that permit holders should no longer be required to notify SafeWork before exercising right of entry to provide an opportunity for an inspector to attend the workplace at the same time. These notification requirements will be retained under this bill.

The bill amends section 143 to increase the penalty for breaching an order of the SAET dealing with a right of entry dispute to $10,000 for a body corporate or $10,000 for an individual. That is consistent with the penalties for breaching an order in relation to a health and safety dispute and emphasises the need for parties to comply with the SAET's orders.

The bill amends section 223 to provide that a representative of a person conducting a business or undertaking or a worker has standing to seek an internal review of a reviewable SafeWork SA decision. The bill amends schedule 2 so that the mining and quarrying occupational health and safety committee will be located within ReturnToWork instead of the Attorney-General's Department. That move is widely supported by stakeholders.

The bill also amends schedule 2 so that in the future the Executive Director of SafeWork SA will be appointed by the government, consistent with most other regulators and prosecuting authorities in South Australia. The bill provides also for an automatic review of these amendments to occur after two years of their commencement and to be tabled in parliament. This will provide a timely opportunity to consider the practical impact of these amendments and any necessary changes to deal with technical or other issues which may arise in the meantime.

This government notes the Queensland parliament has recently passed amendments to its own dispute resolution model, which have not come into effect, which in part expand the range of matters that can be dealt with by its industrial relations commission. The two-year review provided for in this legislation will provide an important opportunity to consider how those amendments have operated in practice in Queensland and whether any of those should be incorporated into our legislation.

In conclusion, I would like to sincerely thank the many stakeholders who have contributed to the independent review of SafeWork SA and the extensive government consultation process on these amendments. Across the board, from industry associations to trade unions to victims and their families, that consultation has been marked by constructive dialogue and a willingness to consider compromise to achieve the one objective everyone agrees is most important: real and significant improvements to the health and safety of South Australian workplaces.

I would particular like to place on the record my thanks to Keith Woodford, Andrea Madeley and other members of VOID who campaigned tirelessly and passionately on behalf of workers who have died at work and their families. This bill would not have been possible without their advocacy. I commend the bill to the council and seek to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Work Health and Safety Act 2012

3—Amendment of section 4—Definitions

Certain definitions are amended, inserted or deleted for the purposes of the measure.

4—Amendment of section 10—Act binds the Crown

Section 7(2) of the Crown Proceedings Act 1992 does not apply in respect of proceedings before SAET under proposed Part 5 Division 7A.

5—Insertion of Part 1 Division 5

This clause inserts a new Division into Part 1 as follows:

Division 5—SafeWork SA Advisory Committee

12A—Establishment of committee

Proposed section 12A establishes the SafeWork SA Advisory Committee, and outlines that the committee shall consist of 15 members, with 4 ex officio members, and 11 appointed by the Minister. Subsection (3) provides for the appointment of alternate members.

12B—Terms and conditions of office

Proposed section 12B provides for the terms and conditions of an appointment to the advisory committee.

12C—Functions

Proposed section 12C establishes the functions of the advisory committee, and gives the committee various powers to support the performance of its functions.

12D—Procedures at meetings

Proposed section 12D makes provision for how the advisory committee will conduct itself at meetings.

12E—Conflict of interest

Proposed section 12E establishes certain circumstances where a member of the advisory committee will not have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

12F—Confidentiality

Proposed section 12F requires members of the advisory committee not to disclose confidential information acquired as a member of the committee without the approval of the Minister.

12G—Use of staff and facilities

Proposed section 12G makes provision for the advisory committee to make use of the staff, equipment or facilities of either the Department (with the agreement of the Minister) or of any other agency or instrumentality of the Crown (with the agreement of the relevant agency or instrumentality).

6—Amendment of section 85—Health and safety representative may direct that unsafe work cease

This clause inserts a clarifying note and is consequential to clause 8.

7—Insertion of section 85A

This clause inserts a clarifying amendment about the concept of 'reasonable concern' for the purposes of sections 84 and 85 and is consequential to clause 8.

8—Insertion of Part 5 Division 7A

This clause inserts a new Division allowing for notices to be given to SAET regarding certain WHS disputes and giving SAET jurisdiction to deal with the dispute.

9—Amendment of section 117—Entry to inquire into suspected contraventions

These amendments—

correct a minor drafting error; and

make provision of a report to the regulator by a WHS entry permit holder discretionary; and

provide that, if a report is provided to the regulator, the regulator will be required to advise the WHS entry permit holder of any action taken following the report.

10—Amendment of section 118—Rights that may be exercised while at workplace

This amendment adds the right to take measurements or conduct tests, or take photos and videos, directly relevant to a suspected contravention of the Act to the list of things a WHS entry permit holder may do while at a workplace.

11—Amendment of section 143—Contravening order made to deal with dispute

This amendment increases the penalty from $50,000 to $100,000 and adds a note to the foot of the section.

12—Insertion of section 152A

New section 152A is inserted:

152A—Right of regulator to intervene in proceedings

The regulator can intervene in any proceedings before SAET under the Act.

13—Amendment of section 223—Which decisions are reviewable

This clause makes a clarifying amendment.

14—Amendment of section 231—Procedure if prosecution is not brought

This section extends the existing time limit for making a request under the section from 12 months to 24 months (where a person reasonably considers that the occurrence of an act, matter or thing constitutes an industrial manslaughter offence, a Category 1 offence or a Category 2 offence) and also provides for making a request within 12 months after a coronial report, or proceedings at a coronial inquiry or inquest. The amendments also require the regulator to provide certain updates and information to the person making the request.

15—Amendment of section 232—Limitation period for prosecutions

This amendment provides that if a matter is referred to the Director of Public Prosecutions for advice on whether a prosecution should be brought, the limitation period in relation to that matter is extended to 1 month following the provision of the advice to the regulator.

16—Amendment of section 254—When is a provision a WHS civil penalty provision

This clause makes consequential amendments.

17—Amendment of section 260—Proceeding may be brought by the regulator or an inspector

This clause makes a consequential amendment.

18—Insertion of section 260A

This clause insert a new provision as follows:

260A—Proceeding may be brought by a party for contravention of certain orders relating to arbitrations

If an order made for the purposes of arbitration under section 102C(3) or 142(3) is contravened, proceedings may be brought in SAET against a person for the contravention of the relevant WHS civil penalty provision by a person affected by the contravention.

19—Amendment of section 262—Recovery of a monetary penalty

This clause makes minor amendments to section 262 to ensure monetary penalties can be enforced as if they were an order of the Magistrates Court or the District Court.

20—Insertion of section 271A

New section 271A is inserted:

271A—Additional ways that regulator may disclose information

Proposed section 271A makes provision for the regulator, or a person authorised by the regulator, to disclose to certain persons in certain circumstances, information relating to an incident.

21—Amendment of section 274—Approved codes of practice

This amendment replaces references to the Consultative Council with references to the advisory committee.

22—Amendment of Schedule 2—Local tripartite consultation arrangements

These amendments replace references to the Consultative Council with references to the advisory committee and replace a reference to the 'Department' with a reference to RTWSA.

23—Amendment of Schedule 5—Provisions of local application

These amendments replace references to the Consultative Council with references to the advisory committee and provide for the appointment of the Executive Director.

Schedule 1—Related amendments, transitional provisions and review

This Schedule includes transitional provisions and provides for a review (including assessment of certain specified matters) 2 years after commencement of the measure.

Debate adjourned on motion of Hon. D.G.E. Hood.