WHS Law Briefing

February 2024

Authors:

Australia | Publication | février 2024

Welcome to our WHS Law Briefing. This briefing identifies key issues and emerging trends in WHS law, and details the significant legislative and case law developments to date in February 2024. Please contact our national WHS team contacts if you would like to discuss any of the matters in this briefing or would like any source materials which have not been included. We welcome your feedback.

Key issues and trends

Engineered stone and respirable crystalline silica	A prohibition on the use, supply and manufacture of engineered stone will commence in the majority of jurisdictions from 1 July 2024. In New South Wales, a 6 month campaign targeting exposure to respirable crystalline silica (RCS) has been launched and a silica worker register will be established. In the Australian Capital Territory, a new Code of Practice: Managing the Risks of Airborne Crystalline Silica (Silica Dust) has been approved. Safe Work Australia has been requested to prepare (by the end of February 2024) an outline of agreed policy parameters for amendments to the national model WHS Regulations on crystalline silica processes across all industries, including additional training requirements, a requirement to conduct air monitoring, and reporting workplace exposure standard exceedances to the relevant regulator.
Industrial manslaughter	The Federal and South Australian Parliaments have passed legislation to introduce an offence of industrial manslaughter in mid 2024, and the NSW Government has announced its intention to introduce a Bill for an industrial manslaughter offence in the first half of 2024. Industrial manslaughter offences have already been introduced into the work health and safety laws of all other states and territories, except Tasmania.
Psychosocial risks	Express provisions for the management of psychosocial risks have now been included in the WHS Regulations in all states and territories, except Victoria, however WorkSafe Victoria is nevertheless investigating and prosecuting duty holders in relation to psychosocial hazards under the primary health and safety duty. Work Health and Safety Regulators around Australia have responded by resourcing specialised inspectors, publishing mandatory codes of practice concerning the management of psychosocial risks, conducting investigations and commencing prosecutions, including in connection with HR processes (organisational justice, procedural fairness and welfare considerations), work design/systems of work, and allegations of sexual harassment and bullying.
Sexual harassment	Safe Work Australia has published a national model WHS Code of Practice, Sexual and gender-based harassment and the Australian Human Rights Commission has published practical guidelines and resources to assist duty holders to comply with the positive duty under the Sex Discrimination Act 1984 (Cth) in respect of preventing sexual harassment. The AHRC’s powers to investigate and enforce compliance with the positive duty commenced on 12 December 2023.