Proposed amendments to the health and safety at work regime
The much-awaited Health and Safety at Work Amendment Bill has at last been introduced, and it gives us some concrete detail to policy changes signalled by the Minister over the course of 2025. You can read our previous update about that here.
There’s some time yet for the Bill to progress through the House, but we expect the Minister to keep the momentum up and get the Bill passed this year. Our team highlights some of the key changes and themes.
A new focus on “critical risks”
The Bill amends the purpose of the HSWA to state that its main purpose is to provide a balanced framework for securing the health and safety of workers and workplaces that prioritises critical risks.
“Critical risk” is defined in the Bill as a risk associated with:
- a hazard described in new Schedule 1A of the HSW Act. The schedule lists hazards to which certain health and safety regulations apply; or
- a hazard of any kind that is likely to result in a death, a notifiable injury or illness, a notifiable incident, or an occupational disease listed in Schedule 2 of the Accident Compensation Act 2001 – as a catch-all test.
If enacted into law, this would require PCBUs to:
- Check Schedule 1A to see whether any listed regulations and hazards apply to their work. PCBUs would need to monitor the schedule to ensure they remain up to date.
- Apply a catch‑all test to identify whether they have other hazards associated with likelihood of the above serious outcomes.
When making assessments PCBUs would need to consider what they know or reasonably ought to know about their organisation and the risks arising from hazards in their work or workplace.
Big changes for small business
The Bill proposes that “small PCBUs” will be required to manage only “critical risks” under their duties and to comply with limited obligations under the Regulations as to the provision of information, supervision, training, instruction, and the provision and use of PPE.
Small PCBUs will need to continue to provide worker welfare facilities like first aid, washing facilities and adequate lighting in full.
The Bill defines a “small PCBU” as a PCBU with fewer than 20 workers carrying out work in any capacity for at least nine months of the year, the latter requirement making an allowance for fluctuating workforces.
Drawing the distinction between “small PCBUs” and other PCBUs by reference to the number of workers appears straightforward, but could be seriously complicated by the broad definition of “worker” which includes not just employees, but also contractors, subcontractors, employees of those contractors and subcontractors, and so on. This risks confusing rather than clarifying what duties a PCBU owes.
Under the draft Bill, PCBUs will be required to prioritise “critical risks” over other risks. However, the status of the obligation is unclear as the Bill expressly states that a failure to do so is not an offence.
Filling in the gaps with ACOPs?
The Bill seeks to broaden the use of “approved codes of practice” (ACOPs), with express provision for “any person” to develop and put forward a draft ACOP for Ministerial ratification.
Relatively few ACOPs have been developed to date, leaving the regulator and PCBUs to rely on guidance, indications from cases, and generally accepted “industry practice” to inform what is “reasonably practicable”.
Some clearer detail and practical information about what is reasonably practicable will surely be welcome by PCBUs, but generating uptake from particular industries and the public at large will yet be a real challenge; this will be an area for keen monitoring.
Managing overlapping regulatory systems
For PCBUs that are subject to other regulatory regimes that manage risks, the Bill seeks to clarify that compliance with the specific requirements in the other regime will result in a PCBU being deemed as complying with the work health and safety duty.
The Government has noted that this change reinforces that the HSWA is focused on work-related health and safety, rather than being a “backstop” public health and safety system.
This will be a significant change for affected PCBUs, who (in theory) will no longer need to duplicate efforts to show compliance with both regimes.
Clarification for “officers”?
The Bill endeavours to clarify the officer’s duty of due diligence, particularly in relation to those individuals who are both officers and “workers”. The classic example is the CEO, who likely is both an officer (due to the degree of influence they exercise over the PCBU) and a worker (as a senior employee).
If passed into law, this will require officers, PCBUs, and the regulator to bring a sharper delineation between activities performed as an officer, and those performed as a worker. We expect to see keen engagement in the consultation process from those occupying and advising governance roles because this is a critical piece of any PCBU’s corporate governance framework.
WorkSafe’s updated enforcement policies
The Bill arrives hot on the heels of WorkSafe’s updated enforcement policies. The updated policies are intended to address industry concerns that WorkSafe can be quick to punish when something goes wrong, but insufficiently supportive in providing advice on how to manage risks.
The enforcement policies are intended to emphasise alternatives to prosecution, such as formal warnings and pre-charge enforceable undertakings, for those businesses that show a willingness to remedy issues and improve workplace safety. This will be a welcome development for businesses nationally, if WorkSafe delivers on those promises.
While the Bill is yet to progress, the updated enforcement policy applies now and under the current version of the HSWA.
Special thanks to the Health & Safety team for preparing this article.
If you require assistance regarding your health and safety obligations, or have questions about how these changes may affect your business, please contact a member of our Health & Safety team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
