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Australia – 2 steps Forward, 1 Step Back – The Current State Of WHS Harmonisation.

26 November, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

For context, in mid-2008 the Council of Australian Governments (COAG) signed an intergovernmental agreement aimed at “harmonising” occupational health and safety laws across all Australian jurisdictions. The result of this agreement was the development of model work health and safety laws (the Model WHS Laws) along with consistent Regulations and Codes of Practice. 
 
Nearly 5 years on, and after a number of changes in State and Territory  Governments, WHS harmonisation is yet to be fully realised.
 
In this Insight, we highlight which jurisdictions are in, which are out and which are already proposing amendments to the  “harmonised” laws. 
 
The State of Play
 
Tasmania
 
This year Tasmania passed legislation enacting the Model WHS Laws in their current form, subject to minor jurisdictional amendments. The laws are set to commence on 1 January 2013 across Tasmania.  
 
South Australia  
 
The South Australian Government passed new WHS laws in November 2012, with its laws also set to commence on 1 January 2013. However, South Australia’s version includes a number of significant departures from the Model WHS Laws, including:
 
  • clarifying that a duty holder (such as a Person Conducting a Business or Undertaking – PCBU) must eliminate or minimise health and safety risks, so far as is reasonably practicable, to the extent to which they have the capacity to influence and control the matter; 
  • mandating that WHS entry permit holders (unions) notify SafeWork SA, if reasonably practicable to do so, before entering a workplace;
  • preserving the right to silence (under the Model WHS Laws this right is removed); and
  • a number of other jurisdictional amendments regarding working at heights; consultation; Codes of Practice; Health and Safety Representatives (HSR) training courses; matters related to WHS entry permit holders; and protecting volunteer “officers” of strata corporations.
 
The Commonwealth, New South Wales, the Australian Capital Territory and the Northern Territory  
 
The Model WHS Laws have been in force in each of these jurisdictions since 1 January 2012. The most significant departure from the Model WHS Laws was in New South Wales, with its Act maintaining the ability of a union to bring a prosecution (albeit in limited circumstances).
 
Queensland
 
Queensland has also been enforcing the Model WHS Laws since 1 January 2012. However, following a change of Government in March this year, Queensland is considering making various amendments to its model laws. So far, the following parts have been highlighted for review:
 
  • removing the terms “contractor” and “subcontractor” from the definition of “worker”;
  • revising or removing the entry powers of a WHS entry permit holder (or union);
  • developing interpretative guidance on what is “reasonably practicable”, in particular what impact “control” has on deciding this; and
  • considering the approval of proposed Codes of Practice, particularly those on bullying and harassment and fatigue, and reviewing the WHS Regulation dealing with prescriptive requirements, including asbestos and audiometric testing. 
 
Western Australia 
 
Western Australia has not yet enacted the Model WHS Laws, nor has any firm date been decided. However, the most recent State budget provided extra funding for implementation of a bill enacting the Model WHS Laws. The Western Australian Government has highlighted four key areas of the Model WHS Laws which continue to pose areas of concern, including:
 
  • the significantly higher penalty regime imposed for a breach of the Model WHS Laws (compared to the current WA regime);  
  • Union or WHS entry permit holder right of entry;   
  • the right of a HSR to cease or direct cessation of unsafe work; and 
  • the remaining reverse onus of proof in discrimination prohibitions.  
 
Victoria 
 
Victoria has also not yet enacted the Model WHS Laws. WorkSafe Victoria has stated, “the Government supports the principle of national harmonisation and continues to work towards best practice legislation”. Despite this, the Victorian government commissioned an independent report, finding that the costs of transition to the new laws for businesses  will be approximately $3.5 billion, with the five most expensive changes identified as:
 
  • the extended definition of confined spaces;
  • the due diligence duty of “officers”;
  • removing the 2 metre height threshold for fall protection;
  • broadening the scope of what is “plant”; and
  • the imposition of an absolute duty to have and test emergency plans.
 
Conclusion
 
Despite the impending addition of South Australia and Tasmania to the 
WHS world, the extended delays by Western Australia and Victoria and the proposed changes in Queensland, means it could be 2 steps forward, 1 step back on the journey to national harmonisation.
 
 









For further information, please contact

   

Scarlet Reid, Partner, Henry Davis York
scarlet_reid@hdy.com.au

 

Scott Joseph, Henry Davis York
scott_joseph@hdy.com.au
 
Tom Reaburn, Henry Davis York
tom_reaburn@hdy.com.au

  

 

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