• Mandatory compliance with Codes of Practice

  A person conducting a business or undertaking or PCBU will be required to comply with Codes of Practice approved by the Minister. Departure will only be permitted where a PCBU provides a standard of health and safety that is either equivalent to or higher than the standard required under the Code of Practice.

  Currently, compliance with Codes of Practice are only mandatory where compliance with the relevant Code (or part) is expressly required by the legislation (although failure to meet the best practice standards in a Code may nonetheless be relevant to assessing what is considered reasonably practicable).

• Disputes about a WHS matter

  Any party to a “dispute” about a “WHS matter” can notify the IRC of the dispute and the IRC may deal with the dispute in any way it thinks fit.

  The new dispute resolution procedure applies to WHS matter disputes between a PCBU and any affected worker, Health and Safety Representative and/or a union. What constitutes a WHS matter is broad, and includes negotiations for a work group (or variation), HSR training and HSR information access requests, and matters about the constitution of a WHS Committee, and issues about cessation of work under Part 5, Division 6. 

  While there are some limitations on when certain disputes can be notified to the IRC, once notified the IRC can mediate, conciliate or arbitrate and, in the case of arbitration, may make orders it considers appropriate for the prompt settlement of the dispute. In some cases, the IRC’s power of review may extend to confirming, varying or setting aside inspector’s decisions (or even returning the matter to the inspector with directions the IRC considers appropriate).

  The IRC can decide not to deal with a dispute, where it forms a view that the WHS matter is frivolous, vexatious, misconceived or lacking in substance and can order costs if the notifying party acted without reasonable cause. Otherwise, a party to a notified dispute must bear its own costs. The proposed provision also provides for a right of appeal under the IR Act.

• Expanded rights of entry permit holders

  The rights of an entry permit holder under section 118 of the WHS Act will be expanded to permit holders to take measurements, conduct tests and take photos and videos directly relevant to the suspected contravention.

• Addition of union as eligible person for reviewable decisions

  A union that represents a worker whose interests are affected by a decision will be an eligible person in relation to reviewable decisions under the following sections of the WHS Act:

  s54(2) - decisions following failure to commence negotiations	ss72(6) & s76(6) - decision in relation to training of HSR; and decision relating to a WHS committee
  s102 - decision on review of PIN	ss191, 194 & 195 - issue of improvement notice; extension of time for compliance with improvement notice; and issue of prohibition notice);
  ss197B & 197E - issue of prohibited asbestos notice and extension of time for compliance with prohibited asbestos notice	ss198, 201 & 207 - issue of non-disturbance notice; issue of subsequent notice; and decision of regulator to vary or cancel notice

• PIN notification obligations

  A PCBU must give SafeWork NSW a copy of any PIN issued to them by a HSR as soon as practicable after the time of issue. The penalty for non-compliance is 50 penalty units. 

  The Second Reading speech to the Bill indicates that the purpose of this new requirement is to give SafeWork NSW improved data about where WHS issues are emerging.

• Limitation periods for commencing prosecutions

  With leave of the court, a prosecution may be commenced after the expiry of the 2 year statute of limitation period, expanding the previous exception for Category 1 offences.  The court must be satisfied that the granting of leave is “in the interests of justice”.

• Union prosecutions

  A union will have the right to bring proceedings concerning a matter relating to a member if it first consults with SafeWork NSW about its intention to bring the proceedings, and the regulator has declined to bring the proceedings. 

  Currently, sections 230(c) and 230(3) of the WHS Act permit unions to bring proceedings, but the right is more restricted. For example, the right is confined to Category 1 or 2 offences and only arise where SafeWork NSW declines to follow the advice of the Director of Public Prosecutions to bring proceedings. 

• Confidentiality of information

  The exceptions relating to the confidentiality of information that a person obtains or gains access to in exercising any function or power under the WHS Act will be expanded to permit disclosure, access or use of a document or information to an employee association officer, employer organisation officer or HSR where disclosure relates to an inspection or investigation of a matter raised by the relevant officer or HSR with SafeWork NSW. That said, the new exception will only apply if the disclosure, access or use will not prejudice an ongoing investigation, prosecution or other exercise of compliance powers.

• Exchange of information

  SafeWork NSW may enter into or approve of an information sharing arrangement with a relevant agency, providing for the sharing of information relating to investigations, law enforcement, assessment of complaints, licensing, authorisations, notifiable incidents, dispute resolution and monitoring of WHS compliance, as well as other information relating to WHS.

  Under the arrangement, the respective parties may request and receive information and disclose information to each other, but only to the extent that the information is reasonably necessary to assist the party with the exercise of their statutory functions.

• Reporting about psychosocial matters

  Every 6-months, SafeWork NSW will be required to provide the Minister with a report about the following matters:

  • the number and types of complaints received by SafeWork NSW about psychosocial matters that relate to either the government sector or the private sector;
  • the number and types of notices issued under Part 10 of the WHS Act about psychosocial matters that relate to the government sector or the private sector; and
  • SafeWork NSW’s insights about the issuing of notices relating to psychosocial matters, including any recommendations for improving psychosocial WHS and reducing psychosocial injuries.

  In an effort to encourage greater transparency, this information will also be published on the SafeWork NSW website.

Changes to the IR Act

By way of snapshot, the changes to the IR Act include the following:

• Gender equality

  Expansion of the objects of the IR Act in relation to gender equality, bullying and sexual harassment. 

• New IRC anti-bullying jurisdiction

  The IRC will have the power to conciliate, arbitrate and make orders concerning the bullying of employees at work and persons sexually harassing employees, prospective employees and PCBUs. 

  The proposed changes will align NSW with Western Australia and Queensland where there are already established anti-bullying jurisdictions under their respective industrial relations acts, and will make stop bullying at work applications available to state and local public sector employees who are not eligible to make an application under the Federal scheme in the Fair Work Act 2009 (Cth).

  The key elements of the new anti-bullying jurisdiction that employers should be aware of are: 

  • An employee is “bullied at work” if one or more individuals repeatedly behaves unreasonably towards the employee (or a group of employees of which the employee is a member) and the behaviour creates a risk to health and safety.
  • Reasonable management action carried out in a reasonable way does not constitute bulling.
  • An employee or their union may apply to the IRC for a stop bullying order if the employee reasonably believes they have been bullied at work, unless proceedings, an application or complaint under an anti-discrimination law concerning the same conduct has been made/commenced and is on foot.
  • If satisfied of both bullying at work and the risk of the bullying continuing, the IRC may make any order it considers appropriate. This may include payment of damages to the employee of up to $100,000, a prohibition on continuing or repeating the bullying or the publication or an apology or retraction.
• Prohibition on sexual harassment in connection with work

  A person (the aggrieved person) who alleges they have been sexually harassed (as defined in the Anti-Discrimination Act 1977 (NSW)) by one or more other persons, or a union on behalf of the aggrieved person, may apply to the IRC for a sexual harassment order. 

  The application:

  • must be made within 24 months after the sexual harassment takes place; and
  • cannot be made if proceedings, an application or complaint under an anti-discrimination law concerning the same conduct has been made/commenced and is on foot.

  If satisfied that the aggrieved person has been sexually harassed, then the IRC may make any order it considers appropriate, which may include, for example, damages of up to $100,000 as compensation for the loss or damage suffered from the sexual harassment and the development and implementation of a program or policy aimed at eliminating sexual harassment. 

  The new jurisdiction is modelled on a ‘one-stop shop’ approach, in which all stages of a claim, including conciliation, arbitration, and final determination, may be heard by the IRC. This moves away from the approach adopted by anti-discrimination legislation which typically require a two-step process (i.e. if a complaint does not resolve in a conciliation conference it is referred to a tribunal or court).

• Significant expansion of provisions relating to victimisation

  Currently, section 210 of the IR Act prohibits an employer or industrial organisation from victimising an employee or prospective employee because of certain prescribed reasons.

  Following discourse regarding the narrow application of section 210, including that the provisions are not well used before the IRC, the Bill has significantly expanded the grounds on which an employee must not be victimised. This includes, if an employee is entitled to a benefit or claim under workers compensation legislation, where an employee has made a complaint or inquiry regarding their employment, or if an employee has a characteristic protected from discrimination under the NSW Anti-Discrimination Act. 

  In addition, the Bill will amend the current reverse onus of proof set out at section 210(2) of the IR Act by introducing an objective test that requires the IRC to be “objectively” satisfied that the alleged matter was not a substantial and operative cause of the detrimental action. When determining if the alleged matter was not a substantial and operative cause of the detrimental action, the IRC may now have regard to conscious and unconscious factors for the alleged matter.

  Given the significant expansion of provisions relating to victimisation, it is expected that the number of victimisation claims which are made in the IRC will increase. 

• Small claims procedure

  Currently, the maximum amount that an industrial court may order an employer to pay on a small claims application in respect of an employee is $20,000. The Bill will amend the IR Act and Industrial Relations (General) Regulation 2020 (NSW) by increasing the maximum amount payable to $100,000.

What does this mean for you and your organisation?

WHS Act reforms

In anticipation of the new reforms commencing, PCBUs should:

• review their WHS Management System for compliance with any relevant mandatory Codes of Conduct;
• review their WHS dispute resolution procedure to determine whether it is effective for managing  and resolving disputes so as to avoid, where possible, referral to the IRC; and
• update systems to ensure copies of any PINs issued by HSRs are provided to SafeWork NSW as soon as reasonably practicable after receipt.

IR Act reforms

In anticipation of the new reforms commencing, government agencies should:

• review bullying, sexual harassment and victimisation policies for compliance with anti-discrimination laws and the IR Act and ensure that policies contain clear procedures for the resolution of complaints;
• provide training to workers (including contractors, trainees and volunteers) in the context of bullying, sexual harassment and victimisation policies;
• provide tailored training to managers and supervisors on the definition of bullying, sexual harassment and victimisation and on how to handle such complaints sensitively and expeditiously;
• review investigation protocols and triage of complaints to ensure that matters are escalated and investigated as appropriate; and
• ensure, to the extent that disciplinary action is taken in respect of an employee, that the reason for the action (and who determines the relevant action) is clearly documented.