WHS laws are changing
Stay up to date on changes to Commonwealth work health and safety (WHS) laws.
Latest changes to WHS laws
November 2024
A new Code of Practice to support changes to work health and safety laws on psychosocial hazards and risks is now in force across the Commonwealth jurisdiction.
The approved Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024 provides practical guidance on how to prevent harm from psychosocial hazards at work, including psychological and physical harm:
- Go to Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024 - Federal Register of Legislation
Persons Conducting a Business or Undertaking (PCBUs) should follow a code of practice to achieve compliance or use other control measures that provide equivalent or higher standards to those required in the code.
The new code contains practical guidance on WHS duties, hazard identification and risk management, and addresses common workplace psychosocial hazards including:
- Bullying
- Harassment, including sexual harassment
- Job demands
- Poor organisational change management
- Traumatic events and material
- Remote or isolated work
- Fatigue
- Poor physical environment
- Intrusive surveillance
- Lack of role clarity
- Low job control
- Job insecurity
- Poor support
- Violence and aggression
- Poor organisational justice
- Conflict or poor relationships/interactions
- Inadequate reward and recognition
The Commonwealth Code of Practice: Managing Psychosocial Hazards at Work introduces Fatigue, Intrusive Surveillance and Job Insecurity as common psychosocial hazards, with these hazards identified as relevant in the Commonwealth jurisdiction.
In addition, PCBUs in the Commonwealth jurisdiction must follow the hierarchy of controls to manage psychosocial risks, as set out in the Work Health and Safety Regulations. This is a step-by-step approach to eliminating or minimising risks, implementing controls from the highest to the lowest level of protection.
These are important differences from Safe Work Australia’s Model Code of Practice: Managing psychosocial hazards at work.
The Commonwealth Code of practice supports amended Work Health and Safety Regulations that came into effect on 1 April 2023, prescribing how PCBUs should identify and manage psychosocial hazards that may create risks to workers’ psychological and physical health and safety.
Development of the Commonwealth code, and related changes to the Regulations, implement key recommendations of the 2018 review of the model WHS laws.
Watch the video - WHS Regulations: Psychosocial hazards
July 2024
Indexation of WHS Act penalties
Monetary penalties under the Commonwealth Work Health and Safety Act 2011 (WHS Act) now increase annually under a new indexation mechanism.
From 1 July each year, penalties will increase under a formula that includes consideration of the Consumer Price Index.
The measure was a recommendation of the 2018 review of the model work health and safety laws. Indexation was added to the WHS Act by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 which passed parliament in December 2023.
Indexed penalty amounts for the main WHS Act offences, effective from 1 July 2024:
| Item | Column 1 - Penalty type | Column 2 - An individual who commits an offence as: (a(a) a person conducting a business undertaking; or (b(b) an officer of a person conducting a business undertaking | Column 3 - An individual who commits an offence (other than as mentioned in column 2) | Column 4 - A body corporate |
|---|---|---|---|---|
| 1 | the category 1 monetary penalty | $3,327,000.00 | $1,663,000.00 | $16,634,000.00 |
| 2 | the category 2 monetary penalty | $464,000.00 | $232,000.00 | $2,318,000.00 |
| 3 | the category 3 monetary penalty | $155,000.00 | $78,000.00 | $776,000.00 |
Details of all indexed penalty amounts are available on the Federal Register of Legislation:
New prohibition - Engineered stone
From 1 July 2024, the supply, processing and manufacture of engineered stone slabs, panels and benchtops will be prohibited under the Work Health and Safety Regulations 2011 in the Commonwealth jurisdiction.
It is proposed that there will be limited transitional arrangements for the engineered stone prohibition for persons conducting a business or undertaking (PCBUs) covered by the Commonwealth work health and safety laws.
These arrangements would ‘mirror’ individual state and territory transitional arrangements and apply depending on the jurisdiction where work is physically performed. For example, for PCBUs operating in a jurisdiction which will permit work in relation to contracts entered into before 31 December 2023, the Commonwealth would similarly permit the work to be completed up to 31 December 2024.
New offence - Industrial manslaughter
The Fair Work Legislation Amendment (Closing Loopholes) Act 2023, which passed parliament in December 2023, introduces a new offence of industrial manslaughter for the Commonwealth Work Health and Safety Act 2011.
Taking effect on 1 July 2024, the offence carries maximum penalties of $18 million for bodies corporate or the Commonwealth and 25 years’ jail for individuals, reflecting manslaughter penalties in the Criminal Code.
Creating a specific industrial manslaughter offence was a key recommendation of the 2018 review of the model work health and safety laws and responds to community concern that the WHS framework requires stronger penalties for the most serious breaches that result in workplace fatalities.
Features of the new offence include:
- Requiring the prosecution to prove either negligence or recklessness, and that the conduct was intentional
- No limitation period for bringing proceedings
- Applies to Persons Conducting a Business or Undertaking (PCBUs) and officers
- Alternative verdicts of a Category 1 or Category 2 offence if a court is not satisfied a defendant is guilty of industrial manslaughter
- Banning consideration of enforceable undertakings in relation to an industrial manslaughter offence
More information
- Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 - Revised Explanatory Memorandum
- Industrial manslaughter and other work health and safety reforms - Department of Employment and Workplace Relations
December 2023
Increased penalties for offences under the Commonwealth Work Health and Safety Act 2011 (WHS Act) came into effect on 15 December 2023. The new amounts, and a range of other measures, are included in the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 that passed parliament earlier that month.
The changes increase penalties for the first time since the WHS Act came into effect, and provide for the amounts to be indexed to the Consumer Price Index for ongoing annual increases.
The legislation amends the WHS Act to include:
- Significant increases to penalties for Category 1 offences:
- $15 million for a body corporate or the Commonwealth (previously $3 million)
- $3 million for a person conducting a business or undertaking or an officer (previously $600,00)
- $1.5 million for any other person (previously $300,000).
- And an increase to all other penalties in the WHS Act and WHS Regulations. For example, Category 2 and Category 3 penalties are now $2,090,000 and $700,000 respectively (previously $1.5 million and $500,000).
- New criminal responsibility provisions for bodies corporate and the Commonwealth.
The increased penalties and indexation were key recommendations of the 2018 review of the model WHS laws and apply to both the WHS Act and Regulations.
New criminal responsibility provisions also promote accountability for bodies corporate and the Commonwealth for breaches of work health and safety duties. The changes mean that the conduct of officers, employees and agents acting within their actual or apparent authority (defined as 'authorised persons'), and/or the board of directors for a body corporate, can be attributed to a body corporate.
New sections 244A and 244B of the WHS Act also allow for aggregation of conduct. This means the same individual would not need to have engaged in the relevant conduct and also hold the relevant state of mind in order to prove an offence against a body corporate.
The Closing Loopholes Act 2023 amends the Fair Work Act 2009 to provide that officials of registered organisations, who do not hold a Fair Work entry permit, may enter workplaces to assist health and safety representatives (HSRs).
Further amendments include:
- Creating a new offence of industrial manslaughter for causing a workplace death of an individual through negligent conduct or recklessness, taking effect from 1 July 2024.
- Establishing a Family and Injured Workers Advisory Committee by the end of 2024 to advise the Minister and Comcare on the support needs of those affected by a serious workplace incident and help inform on relevant Comcare policies, practices and strategies.
More information
- Go to Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 - Revised Explanatory Memorandum
- Go to WHS reforms, including industrial manslaughter - Department of Employment and Workplace Relations
- Go to Department of Employment and Workplace Relations' Entry to assist Health and Safety Representatives factsheet
September 2023
In March 2023, a bill containing a suite of amendments to the Commonwealth Work Health and Safety Act 2011 passed the Australian Parliament.
The changes under the Work Health and Safety Amendment Act 2022 came into effect on 21 September 2023 and include:
- Broadening the Category 1 offence to include negligence as a fault element
- Prohibiting insurance coverage for monetary penalties
- Enhancing inspector powers
- Extending the deadline for a person to request a prosecution, and strengthening requirements for Comcare to provide progress updates
- Allowing Health and Safety Representatives to choose their own Comcare-approved training course
The amendments implement recommendations of the 2018 review of the Model WHS Laws which looked at how the legislation was operating in practice.
This follows changes to the Work Health and Safety Regulations 2011 in April 2023 which prescribe how employers must identify and manage hazards and risks to workers’ psychological health and safety.
More information
- Download the Work Health and Safety Amendment Bill 2022 Explanatory Memorandum
- Download the Work Health and Safety Amendment Bill 2022 Second Reading Speech
Changes to psychosocial regulations
April 2023
In April 2023, important changes to Commonwealth work health and safety laws came into place.
For the first time, the Work Health and Safety Regulations 2011 prescribe how employers must identify and manage hazards and risks to workers’ psychological health and safety.
The amended Work Health and Safety Regulations prescribe how duty holders must identify and manage hazards and risks to workers’ psychological health and safety.
Organisations need to consider and review approaches to managing psychosocial risks and fostering mentally healthy workplaces. This includes engaging and consulting with workers.
Comcare has guidance on psychosocial hazards, and a range of education products for psychological health and safety, available through our Learning Management System. New education products including webinars continue to be developed.
There is also a dedicated unit within our WHS inspectorate to focus on regulation of psychosocial hazards and associated risks.
More information
Case studies
We have developed a suite of case studies based on Comcare regulatory activity in response to incidents involving psychosocial hazards and risks at workplaces in the Commonwealth jurisdiction, intended as an education resource to provide you with examples of hazards and risks and how they can be managed.
You may also find these Comcare resources and information helpful:
Why this is important
It is important you understand the changes to the WHS laws so you can update your risk assessments and control frameworks and ensure that your organisation complies with the updated legislation. Mentally safe, healthy and productive workplaces benefit both employers and employees, and psychosocial hazards in the workplace are real.
Regulatory guides
Comcare produces a range of regulatory guides to help you fulfil your duties and comply with your obligations.
From guidance on the legislative framework to your health and safety duties, we can help you understand the requirements of the new WHS laws.
