13 December 2010

Draft workplace safety regulations released for comment

Safe Work Australia has taken the latest step in the harmonisation of Australia's occupational safety laws with the release of the Model Work Health and Safety Regulations for public comment.

As part of the package Safe Work Australia has also released an Issues Paper and draft Model Codes of Practice.

At over 550 pages, the draft Model WHS Regulations defy easy analysis, and you can expect more commentary as its implications are better understood. What is clear at this stage is that employers should seize the opportunity to comment and seek clarification of how the new model WHS regime will work in practice, and how it fits within appropriate risk management procedures.

What's in the draft Model WHS Regulations…
The draft Model WHS Regulations cover:

  • record-keeping requirements
  • representation and participation
  • general workplace management
  • hazardous work
  • plant and structures
  • construction
  • hazardous chemicals
  • major hazard facilities
  • review of decisions under the WHS Regulations, including those relating to licences, accreditation, and exemptions.

… And what's not
The chapter on mines has not been released with this draft. The policy is still being developed, and there is no timeframe for its release, although the issues paper says it will be available for public comment.

Draft Model Codes of Practice
A dozen draft Model Codes of Practice have also been released for public comment, with more on the way. Most are specific to an industry or risk, but three will affect everyone across the board:

  • How to Manage Work Health and Safety Risks
  • How to Consult on Work Health and Safety
  • Managing the Work Environment and Facilities

These Codes are meant to be practical guides and hence are a very important element in the day-to-day management of workplace safety, but they can also be used by courts as evidence of what is known about a hazard, risk or control, and in determining what is reasonably practicable.

They are not however mandatory; there can be compliance with the WHS Act and Regulations where an employer follows another method, such as a technical or an industry standard, if it provides an equivalent or higher standard of work health and safety than the code.

Safe Work Australia is seeking feedback on whether they are helpful and easy to understand, and reflect the current state of knowledge and technological developments in managing various risks.

Penalties and enforcement
The issues paper sets out various offences and the proposed financial penalties for each. It is important to note however that although under the model WHS Act the maximum monetary penalty for corporate offenders for standalone offences is set at $30,000, there is a possibility this will be doubled.

Infringement notices will still be a feature of workplace safety law, and the issues paper sets out the types of offences which could be the subject of an infringement notice (generally minor or less serious offences, for which no state of mind need be proved).

The current proposal is that states and territories use existing generic legislation for infringement notice schemes to enact and apply a scheme for the model WHS legislation. While expedient, this would slightly compromise the intended goal of harmonisation.

Other options for regulator are providing information, education and advice, issuing an improvement notice, or administrative penalties such as licence suspension and cancellation.

So what happens next?
The period for public comment closes on Monday 4 April 2011. Safe Work Australia then finalises the model WHS Regulations package in June, for the approval of the Workplace Relations Ministers’ Council.

The Model Work Health and Safety Act and Regulations are expected to come into effect across Australia in January 2012, but employers should not be sitting back and relaxing. This consultation period is a great opportunity to shape the final Model Regulations, and gives a valuable indication of the future shape of workplace safety laws, so employers can (and should) start getting ready now.


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Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.
For more information, contact...
Email: Robbie Walker, Partner
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Email: Glen Bartlett, Partner
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Email: Geoff Harley, Consultant
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Email: Saul Harben, Partner
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