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Australia – Occupational Health And Safety Harmonisation – Progress In WA.

 15 October, 2012

 

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

 

In brief

 

  • New harmonised work health and safety laws (model WHS laws) in the form of a model Work Health and Safety Act (WHS Act), model Work Health and Safety Regulations (WHS Regulations) and various model Codes of Practice, have already commenced in a number of jurisdictions.
  • Western Australia has decided to delay the implementation of the model WHS laws. The government has not announced when Western Australia will implement the model WHS laws.
  • Western Australia is currently conducting a consultation process to assess the benefits and costs to Western Australia resulting from the changes to existing occupational health and safety laws.
  • At a broad level, the proposed model WHS laws reflect the current legislative arrangement in Western Australia where there are separate laws for general industry and the mining industry. However, the model WHS Act will contain a number of new concepts which are different to the terms used in the current laws.
  • Western Australia has committed to harmonisation of its current workplace health and safety laws subject to four areas which will not be included in Western Australia’s work health and safety legislation.

 

Progress of Occupational Health and Safety Harmonisation

 

Australia’s new harmonised work health and safety laws are now in force across a number of jurisdictions. The model WHS laws have already been implemented in New South Wales, Queensland, the Northern Territory, the Australian Capital Territory and the Commonwealth. The remaining States, including Western Australia, are at various stages of implementation. (Note: The Victorian government has announced that it will not adopt the harmonised work health and safety laws because the costs of introducing the legislation outweigh the benefits. Victoria will continue to work towards best practice legislation.)


For a snapshot of progress of Occupational Health and Safety Harmonisation, please click here.


Progress in Western Australia Western Australia has decided to delay the implementation of the model WHS laws until such time as the model laws and regulations that are specific to the mining industry (“the model Mine Safety laws”) have been finalised. The Western Australian government proposes to implement the model WHS laws and the model Mine Safety laws together to ensure consistency across different industry sectors. The government has not announced when Western Australia will be in a position to implement the model WHS laws. In the meantime, Western Australia will be conducting a public consultation process to assess the impact of the model WHS laws on various industries within the State. The consultation process is to estimate the benefits and costs to Western Australia resulting from the proposed changes to the current occupational health and safety laws. Submissions can be made in writing, or by completing an online survey (available at http://www.marsdenjacob.com.au). The closing date for submissions is 12 October 2012.

 

For a snapshot of the proposed Work Health and Safety laws for Western Australia, please click here.


The model WHS laws reflect the current legislative arrangement in Western Australia where there are similar but separate legislative frameworks for general industry and the mining industry. The model Codes of Practice are intended to provide guidance for business on how to implement the model WHS Act and the accompanying WHS Regulations. The dangerous goods legislation will continue to operate concurrently with the model WHS laws. However, some amendments will be made to the dangerous goods legislation to ensure that the terminology used is consistent with the model WHS Laws.

 

Key changes to Western Australia’s current Occupational Health and Safety laws For the most part, the model WHS Act will be based on the same concepts as the Occupational Safety and Health Act 1984 (WA) (“OHS Act (WA)”). However, the model WHS Act will contain a number of new terms compared to the current OHS Act (WA).

 

New terms used in the WHS Act

 

Term used in the OHS Act (WA) Term used in the model WHS Act Proposed definition
Employee Worker The term “worker” is broadly defined and applies not only to employees, but to contractors, labour hire workers, apprentices, trainees, work experience students and volunteers.
Workplace Workplace A “workplace” is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
Employer Person Conducting a Business or Undertaking (“PCBU”)

A person conducts a business or undertaking whether:

  • the person conducts the business or undertaking alone or with others; and
  • whether or not the business or undertaking is conducted for profit or gain.

It includes a business or undertaking conducted by a partnership or an unincorporated association

 

While many of the provisions in the model WHS Regulations and Codes of Practice are very similar to the Occupational Safety and Health Regulations 1996 (WA), there are some that are different or new. WorkSafe Western Australia has identified 13 key areas where there are significant differences between the existing law and the model WHS Regulations and Codes of Practice. These include:

 

  • Asbestos
  • Construction projects
  • Diving work
  • Fall prevention
  • Hazardous chemicals
  • High risk work licences
  • Incident notification
  • Lead risk work
  • Noise
  • Personal protection equipment
  • Plant
  • Spray painting
  • Thermal comfort.

 

Health and safety duties under the model WHS Act

 

The model WHS Act imposes the primary duty for the health and safety of workers on a PCBU. This is an important feature of the model WHS Act because in the past, the obligation to maintain health and safety has been the primary responsibility of the employer.

 

The primary duty of care is to ensure so far as is reasonably practicable, the health and safety of:

 

  • workers engaged or caused to be engaged by the PCBU; and
  • workers whose activities in carrying out the work are influenced or directed by the PCBU.

 

Safe Work Australia, the statutory body responsible for the improvement of work health and safety and work health and safety harmonisation, has issued interpretative guidelines on the meaning of PCBU and on the meaning of “reasonably practicable”.

 

The WHS Act also imposes an additional duty on any person who manages or controls the workplace. This means that owners or operators who maintain control over a workplace (or owners or operators of fixtures and fittings at a workplace) may be liable for any risks that arise. Duties also apply to a PCBU who:

 

  • designs, manufactures, imports or supplies plant, structures or substances; and
  • installs, constructs or commissions plant or structures, that are or could be used at a workplace.

 

Workers and other persons

 

Workers and other persons will also have duties, including to take reasonable care for their own health and safety and not to adversely affect the health and safety of others.

 

Multiple obligation holders

 

If there are multiple obligation holders, each obligation holder has a duty to consult, cooperate and coordinate activities with the other obligation holders. This is an important development.

 

Due diligence obligations on officers The WHS Act introduces due diligence duties for officers of companies and organisations. Officers will be required to exercise ongoing due diligence to ensure that a PCBU complies with their obligations under the WHS Act. The duties imposed on officers are independent of the duties imposed on PCBUs and apply whether or not a PCBU is found to be in breach of the WHS Act. 

 

The model WHS Act applies the definition of “officer”” in the Corporations Act 2011 (Cth). 

 

To show “due diligence”, an officer must take reasonable steps to:

 

  • acquire and keep up to date knowledge of work health and safety matters;
  • understand the nature of the operations of the PCBU and the hazards and risks associated with those operations;
  • ensure the PCBU has appropriate resources and processes to eliminate or minimise risks to health and safety;
  • ensure the PCBU has appropriate processes to receive nformation regarding incidents, hazards and risks and respond in a timely way;
  • ensure the PCBU has, and implements, processes to comply with its obligations under the WHS Bill; and
  • verify the resources and processes used by the PCBU.

 

Safe Work Australia has issued interpretative guidelines on officers’ duties and due diligence obligations.

 

Features of model WHS Act which will not be adopted in Western Australia

 

Western Australia has committed to harmonisation of its current workplace health and safety laws subject to four areas which will not be included in the draft Work Health and Safety legislation. These are: 

 

  • Penalty levels – Western Australia considers that the penalty levels proposed by the model WHS Act are significantly higher than the current levels and could be unreasonably punitive for businesses.
  • Union right of entry – The model WHS Act provides permit holders with new powers to investigate suspected contraventions of health and safety laws, and to consult on health and safety matters with workers. Western Australia considers that there is no need to implement these provisions as:
    • right of entry is already covered by the Industrial Relations Act 1979 (WA); and
    • the proposed change would create confusion and inconsistencies with the current laws. 
  • Health and Safety representative’s capacity to direct the cessation of work – The model WHS Act provides additional powers for health and safety representatives (“HSRs“) to issue directions to cease work. Western Australia has indicated that the decision to cease work should remain with the individual worker and not be the responsibility of the HSR.
  • Reverse onus of proof in discrimination matters – Western Australia has indicated that it will not adopt a reverse onus of proof in discrimination matters. Further, Western Australia will not adopt provisions in the model WHS Act which allow the Director of Public Prosecutions to review a decision by WorkSafe Western Australia not to prosecute.

 

What you need to do:


  • Identify the difference between the current and the proposed duties and obligations, and the potential operational impacts of the changes. 
  • Review your policy and procedures in light of those differences. 
  • Officers and boards of directors need to review and if necessary refine their safety corporate governance systems so as to align with the due diligence guidelines.
  • If your company has workplaces in other jurisdictions, compare the duties and obligations in all those States and Territories.

 

 

For further information, please contact:

 

 

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