02 Jun 2011

OH&S harmonisation update

by Joe Catanzariti

Queensland is the only State to have passed the new OH&S laws, but others are moving fast.

Federal Workplace Relations Minister Chris Evans spoke about the OH&S harmonisation at the ACTU OHS and Workers' Compensation Conference in Brisbane on 13 April 2011. He addressed two particular areas of concern – the union right to prosecute for breaches of health and safety duties, and the reverse onus of proof.

New South Wales fast-tracks harmonisation

On 5 May 2011, the NSW Liberal Government tabled two Bills which not only introduce the model Act in accordance with the harmonisation timeline but also fast-track many of the changes contained in the model legislation.

The Work Health and Safety Bill 2011 is proposed to commence on 1 January 2012 in line with the harmonisation time-frame. It will be supplemented by Model Work Health and Safety Regulations and Codes of Practice. Importantly, the Bill will take the jurisdiction for OH&S offences away from the NSW IRC and prosecutions will now be instituted for summary offences in the Local Court (which will have the jurisdiction to fine up to $50,000) or the District Court.

The Occupational Health And Safety Amendment Bill 2011 was introduced simultaneously to immediately amend the current Occupational Health and Safety Act 2000 (NSW). Important changes are:

  • the reverse onus of proof will be removed;
  • directors and officers will no longer be liable for actions of the corporation. New provisions will change the current section 26 to impose a duty on officers of a corporation to exercise due diligence to ensure that the corporation complies with its occupational health and safety duties;
  • the amendments made to the duties will only affect acts and omissions occurring on or after the date of assent; and
  • trade unions will no longer be able to commence proceedings against employers.

Both Bills were passed by the lower house and are currently before the NSW Legislative Council.

Queensland introduced model Bill

On 26 May 2011, the Queensland Parliament passed the Work Health and Safety Bill 2011 and the new Safety in Recreational Water Activities Bill 2011.

As the national model Work Health and Safety Bill does not include diving provisions, the Queensland Government says that "the new legislation for safety in recreational water activities ensures the strict safety standards in Queensland’s diving industry are maintained."

Meanwhile, harmonisation Bill reintroduced by South Australian Government

South Australia on 7 April 2011 became the first jurisdiction to introduce a Bill that mirrored the model Act, but former Industrial Relations Minister Bernard Finnigan, who was responsible for the Bill, abruptly resigned from Cabinet shortly after.

The Bill was subsequently withdrawn and a spokesperson for new Industrial Relations Minister Patrick Conlon has stated that "The Bill was withdrawn from the Upper House to allow Minister Conlon to meet with industry representatives and hear their concerns about the Bill, as the Minister has only recently taken carriage of the portfolio."

On 24 May 2011, the State Energy Minister, Michael O'Brien, on behalf of the Industrial Relations Minister reintroduced the Bill which mirrors the model laws, but retains the State's unique tripartite review committees, which can recommend changes to OH&S legislation.

Western Australia still participating in harmonisation

Although Western Australia was somewhat reluctant, it has continued to take part in the harmonisation process. The Western Australian Government has stated that it is likely to adopt significant portions of the model laws when it enacts its version of the legislation. The areas which have been flagged as possible departure points by the Western Australian Government include:

  • the maximum quantum of the penalties;
  • right of union entry provisions;
  • powers of Health & Safety Representatives to direct work to cease and to issue provisional improvement notices; and
  • the reverse onus in discrimination matters.

This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

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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 communication. Persons listed may not be admitted in all States and Territories.