The SA Government has recently passed amendments to the Work Health and Safety Act 2012 to incorporate a number of recommendations that were made in 2022 following a review into SafeWork SA’s compliance and enforcement functions.
Work health and safety disputes
Currently, where a WHS dispute arises between an employer and employees (or their union representatives), any of the parties may ask SafeWork SA to appoint an inspector to attend the workplace to assist in resolving the issue in dispute.
The new amendments now cover what occurs in circumstances where the dispute remains unresolved. If 24 hours have passed since the request for assistance was made to SafeWork SA and the dispute remains unresolved, a party to the dispute may now apply to the South Australian Employment Tribunal (SAET) to deal with the matter. This can take the form of mediation, conciliation or arbitration and SAET may make orders it considers appropriate for the prompt settlement of disputes. Where an order is made by SAET, penalties exist for contravening those orders (up to a maximum $100,000 penalty for a body corporate). Finally, SAET may decide not to deal with a dispute if it considers the matter to be frivolous, vexatious, misconceived or lacking in substance.
Rights of entry permit holders whilst at a workplace
Currently, WHS entry permit holders (i.e. union representatives) may enter a workplace to inquire into a suspected WHS contravention. Whilst in the workplace, entry permit holders may consult with workers and inspect the work systems and plant equipment. The new amendments now allow entry permit holders to also take measurements or conduct tests relevant to the suspected WHS contravention as well as take photos and videos directly relevant to the suspected contravention.
Confidentiality rules
In the past. it has been difficult for victims of safety breaches and their families to obtain information from SafeWork SA regarding the status of investigations.
The new amendments make it much easier for information on investigations to be shared with relevant parties.
Illegal to obtain insurance coverage over WHS penalties
The SA Government agreed to a last-minute amendment by the Greens to prohibit employers from insuring against any fines or penalties imposed for WHS breaches. This amendment brings South Australia into line with New South Wales, Victoria and Western Australia.
SafeWork SA Advisory Committee
The amendments formalise the creation of the SafeWork SA Advisory Committee which includes representatives from government, employers, and unions to assist SafeWork SA in improving work health and safety. There are a total of 15 members on the Committee which currently includes an MTA representative. It is expected that MTA’s representation on this Committee will continue.
