Work is continuing on the development of a harmonised OHS legislation that would replace the current individual legislation in each state.
Currently all states, territories and the Commonwealth are responsible for making and enforcing their own OHS laws. Although these draw on a similar approach for regulating workplaces, there are some differences in the application and details of the law. This issue has been addressed through an intergovernmental agreement where, for the first time, governments from each state and territory and the Commonwealth have formally committed to the harmonisation of the OHS legislation.
To support this harmonisation initiative, Safe Work Australia was formed as the principal national body responsible for occupational health and safety (OHS) and workers’ compensation arrangements across Australia. Recently, the Safe Work Australia members who represent all states and territories, agreed by majority to endorse the current version of the amended Model Work Health and Safety (WHS) Act and to recommend it to the Workplace Relations Minister (WRMC).
Key Changes in the Work Health and Safety (WHS) Act:
In many cases, the model Act draws on existing state OHS requirements. However, it also introduces some new additions or clarifications. Some of the main changes included in the model legislation are outlined below:
Broader definition of “worker”
- The new Act recognises the changing choice of work options and provides a broader definition of ‘worker’ and work environments.
- The model Act clarifies that the officers of corporations have an obligation to exercise due diligence to ensure the company’s duty of care.
- Unions will lose the power to prosecute for an OHS offence, which is currently allowed in NSW.
- Unions will have the right to enter any workplace to:
- Investigate suspected breaches of the OHS Act or regulations.
- Consult with and provide advice to workers on OHS issues.
- Consult with the person in control of a workplace on OHS issues.
- Health and safety representatives will have the power to direct work to cease where they feel the work will pose an immediate threat to any person. They can also issue provisional improvement notices. These powers would be new to New South Wales and Tasmania.
- Clearer guidelines will be provided on employee consultation requirements. This includes the need to consult when:
- Identifying hazards and assessing the risks of work performed.
- Making decisions about ways to eliminate or control those risks.
- Proposing changes that may directly affect the health and safety of workers.
- Making decisions regarding OHS procedures.
- Incident notification requirements will be uniform across all states with the employer having responsibility to notify the regulator immediately when there is a fatality, serious injury, serious illness or a dangerous incident.
Role of inspectors and regulators
The role of inspectors and regulators will be nationally consistent and will include:
- Inspectors will be able to:
- Investigate suspected breaches of OHS legislation.
- Issue infringement notices, improvement notices and prohibition notices.
- Provide advice and assist in the resolution of issues at workplaces.
- A regulator will be able to:
- Seek an injunction when there is an ongoing breach of a prohibition notice
- Compel compliance with an improvement notice after the time period has expired.
- Codes of Practice will be used to help courts decide what is reasonably practicable in certain circumstances. However, employers will also be able to demonstrate compliance through other ways than those prescribed in relevant Codes of Practice.
The current version of the Model Work Health and Safety Act can be downloaded from:
Each state and territory and the Commonwealth will be required to enact regulations that reflect the model work health and safety laws by the end of 2011. It is expected that all laws will commence on 1 January 2012.
Some model Codes of Practices may be developed and implemented at the same time as the model WHS Regulations. However, development and implementation of further model Codes of Practice and guidance material will continue beyond December 2011.
Timeline for introduction of the harmonised OHS Legislation is:
|September 2009 – September 2010||Model work health and safety (WHS) Regulations for all other matters developed.|
|November 2010 – January 2011||Model WHS Regulations for all other matters released for public comment.|
|June 2011||Model WHS Regulations submitted to Workplace Relations Ministers’ Council (WRMC) for agreement.|
|December 2011||All jurisdictions to enact the Model Work Health & Safety Act and model WHS Regulations and complete all related transitional arrangements.|
Written by David Ginpil
Head of Safety & Risk Management, RiskLogic Pty Ltd