AICD brings director voice to WHS Best Practice Review

A harmonised workplace health and safety (WHS) framework with principles-based WHS laws is fundamental to maintaining a best practice regime across the different Australian jurisdictions.

The Australian Institute of Company Directors has lodged a detailed submission to Safe Work Australia in response to the Commonwealth Government’s Best Practice Review, which is considering best practice approaches in the context of maintaining harmonisation of WHS laws. The submission draws on director consultation and commissioned advice from King & Wood Mallesons on the current operation of the WHS laws in Australia.

The current landscape

As it stands, Australia’s WHS laws are somewhat fractured, with the Commonwealth and all States other than Victoria having implemented the model WHS laws, but with each State and territory departing from the model WHS laws in different ways.  Victoria  has not implemented model WHS laws and has its own regime.

There have also been recent disturbing trends in workplace fatalities and injuries. Improvements in the number of workplace fatalities and serious compensation claims have stalled or begun to trend upwards. Of note, mental health conditions account for an increasing proportion of serious claims, at 10.5 per cent in 2022-23, a 97.3 per cent increase from 2012-13.

This highlights the pressing need for a harmonised WHS framework, to ensure the same safety standards are delivered for all workers and to simplify compliance.

In this context, the AICD has welcomed the Best Practice Review and made a series of recommendations to it.

AICD recommendations to the Best Practice Review

Harmonisation

The AICD strongly supports harmonisation across all Australian jurisdictions and believes it is the best way to establish uniform safety standards, reduce compliance impacts for multi-jurisdictional businesses, improve regulatory consistency, and reduce workplace deaths and injuries.

The AICD has told Safe Work Australia that it is vital that the now extensive jurisdictional variations are addressed, as they are undermining the harmonisation objective and making it difficult for businesses to manage their obligations.

This is partly because of the extensive volume of information contained across Australia within the various acts, regulations and codes of practice, which makes compliance unduly challenging.

The AICD has advocated that the harmonisation focus of the Review should deliver a coherent, consistent standard for governance, enforcement and assurance. Any additional regulations should be targeted, evidence‑based and demonstrably improve safety outcomes. Duplicative or jurisdiction‑specific overlays that add complexity without lifting safety standards should be avoided or removed.

Principles-based laws

The AICD has also advocated that best practice is also maintained where the WHS laws are principles-based, not prescriptive – providing flexibility for organisations within a clear regulatory framework, whilst allowing regulation to adapt to emerging technologies.

The AICD considers that the model WHS laws are working in accordance with their purpose and there is no need to significantly change the framework. Changes should only be made where clear evidence shows that the current framework is not working and there is a genuine gap to be addressed.

Emerging risks are best addressed by having applicable Codes of Practice and education materials disseminated, rather than introducing legislation.  This approach provides greater scope to flexibly adapt to new risks, while still requiring organisations to identify, assess and control those risks.

Liability of volunteer directors

The AICD has also reiterated its position that the model WHS laws must continue to provide that a volunteer director cannot be prosecuted for failing to comply with their duties under the model WHS Act. Critically, this does not mean that they do not carry WHS obligations.

This immunity is vital to ensure that voluntarism is not discouraged, especially in a range of critical sectors where directors are often unpaid (eg human services).

Enforcement and offences

The harmonisation of provisions dealing with enforcement, compliance and offences was another focus, as this is one area where the lack of consistency across jurisdictions is glaring.

Differences in regulator expectations across jurisdictions, the use of prohibition notices, access to enforceable undertakings, and varying prosecution policies make it hard for boards to set a nationally consistent risk threshold and assurance program.

There is a similarly compelling need to harmonise industrial manslaughter WHS regimes across Australia.

Artificial Intelligence (AI)

The AICD supports the Government’s current focus on ongoing monitoring and data collection to assess the potential impacts of AI.

The AICD has advocated that standalone AI WHS laws should only be included in the Model WHS Laws where there is a gap in existing laws that risk causing significant harm and where technology-neutral regulation is not possible. At this stage, we are not aware of material gaps, however guidance to clarify how existing WHS laws apply to AI use may be helpful.

Psychosocial risks

The AICD does not support introducing further new regulations to deal with psychosocial risks which are complex and often multi-causal, with the workplace being one of many factors that go towards psychosocial health. 

The AICD advocated that it is important that employers can seek outcomes that align with good business practice. 

For example, businesses looking to introduce AI capability to increase efficiencies and customer satisfaction need to be able to do so, even if that may mean redeployment of staff or redundancies.  While all care should be taken to manage the psychological impacts of these technology-driven changes, the fact that there may be job losses should not be equated with unacceptable psychosocial outcomes, particularly if appropriate retraining, redeployment or other mitigations are put in place.

Next steps

The Best Practice Review is expected to review and consider submissions from now through March 2026, with a response expected by mid-next year. The AICD will remain engaged in the review process and continue to keep members updated.