Review of SafeWork NSW concludes: increased enforcement expected
23 February 2024
23 February 2024
The Final Report refers to submissions which raise concerns about the failure to use workers' compensation data effectively to inform SafeWork about at-risk workers, and shortcomings related to accessing this data.
It is these submissions which led the Honourable Justice Robert McDougall KC to emphasise the close alignment of the interests of workers' compensation insurers with SafeWork, and to recommend that 'a system be established to enable SafeWork to have access to claims data held by workers’ compensation insurers for the purpose of identifying at-risk industries, PCBUs and workers and targeting programs of education and inspection accordingly.'
The Honourable McDougall KC makes a further, related recommendation that Parliament consider enacting legislation to remove prohibitions and restrictions that would inhibit SafeWork's access to the workers' compensation data.
We will have to wait and see if Parliament enacts legislation to the effect stated above. However, the significance of the recommendation to grant SafeWork inspectors a right to access workers' compensation claims cannot be understated.
Businesses should expect to see a considerable increase in regulatory oversight of their HR practices, particularly in relation to performance management and managing misconduct. This means businesses will have to develop a wholistic approach to their employment practices and consider how these practices interrelate with and respond to work health and safety.
Just as employers are struggling to manage psychosocial risks in the workplace (see our Psychosocial and Psychological Risks in the Workplace Report), the Final Report suggests SafeWork is facing a similar challenge.
The Final Report highlights submissions which suggest SafeWork NSW itself 'is failing to address emerging harms such as psychosocial harms', and that its inspectors lack awareness of 'invisible' hazards, 'particularly psychosocial hazards like workload'.
It is these submissions which inform the recommendations that SafeWork NSW:
(a) 'train more of its inspectors specifically in dealing with psychosocial hazards, or alternatively, employ additional personnel to be trained as inspectors with specific training in dealing with psychosocial hazards'; and
(b) 'work with employer groups, unions and HSRs in individual industries to create industry forums whose role is to identify psychosocial hazards in the relevant industry, to educate PCBUs and workers about those hazards, and to develop and implement strategies to minimise them'.
At first glance, these recommendations simply reflect the already increasing regulator focus on workplace psychosocial health and safety in Australia. Organisations should however be mindful of how this push for greater education within the agency will lead to greater confidence (and competence) among its inspectors to investigate workplace psychological hazards.
We also anticipate the emergence of a similar 'two birds, one stone' approach in this space. While the Final Report acknowledges that workers should normally use workplace processes to deal with psychosocial hazards (such as bullying or harassment), it states 'there will be cases where the worker is justified in bypassing those processes and going straight to SafeWork'. The number of these cases may increase as SafeWork's inspectorate becomes better equipped and better informed.
As SafeWork embarks on its transformation into a standalone regulator, we can expect to witness stronger, more responsive regulatory work health and safety enforcement in NSW, particularly around the investigation of complaints relating to psychosocial hazards.
Organisations should prepare for increased involvement by SafeWork in previously employment-specific and HR practices.
Please contact your Ashurst advisor should you wish to discuss any of the upcoming changes.
Authors: Scarlet Reid, Partner; Peta Banbas, Lawyer; and Gemma Harvey, Graduate.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.