08 Nov 2012

Two steps forward, one step back: harmonising Australian work health and safety laws

by Shae McCartney, Robert King, Andrew Wydmanski

Victoria and Western Australia are yet to agree to sign up to the harmonised WHS legislation, while Queensland may diverge from other states.

The progress towards nationally uniform work health and safety (WHS) laws has advanced with South Australia passing new legislation. The harmonised WHS laws in South Australia and Tasmania will come into effect on 1 January 2013. Victoria and Western Australia are yet to agree to sign up to the harmonised legislation, while Queensland may diverge from other states.

South Australian changes

On Thursday, 1 November 2012, South Australia's Parliament passed its harmonised Work Health and Safety Act 2011, albeit with some distinct differences that were negotiated with South Australia's independent MP.

South Australia's WHS Act was passed with the following amendments:

  • retaining the privilege against self-incrimination during health and safety investigations in section 175 (this has been abolished by the WHS Acts in other jurisdictions);
  • clarifying section 17 so that duty holders are only obliged to eliminate risk or minimise risk (in order to ensure health and safety) only if the duty holder has a capacity to control that risk;
  • for "high risk construction work" working at heights will be defined as involving a risk of a person falling more than 3 metres (instead of 2 metres);
  • safe work method statements may be amended by providing an addendum to the SWMS, instead of completing a brand new SWMS when the changes are minor work-method changes; and
  • additional consultation with the Small Business Commissioner in relation to any model Codes of Practice that relate to small business.

In addition, permit holders exercising a right of entry must contact SafeWork SA before they enter work sites and:

  • if a SafeWork inspector also attends the site, the union official will be required to comply with the inspector's directions; or
  • if inspectors are not present, then the union official must report any findings to SafeWork SA.

Queensland developments: The Roundtable Review

Queensland Attorney-General Jarrod Bleijie recently met with representatives from unions, business and industry groups in a Roundtable Review to discuss the harmonised WHS Act and to consider potential changes.

Workplace Health and Safety Queensland recently released a summary document outlining the key outcomes of the Roundtable Review, including consideration of:

  • the exclusion of "contractors and subcontractors" from the definition of "workers"; and
  • amendments to right of entry powers, including whether these powers should be removed from the WHS Act.

Representatives are invited to provide submissions on the costs and benefits of the WHS Act, including the impact of the national safety laws.

Other areas of discussion include:

  • providing further guidance on the concepts of "reasonably practicable" and how "control" determines whether something was "reasonably practicable"; and
  • recommending some of the second tranche of model codes of practice which are predominantly construction-related not be implemented in Queensland.

Special working groups will be set up to:

  • consider asbestos regulations for report back; and
  • review the model codes of practice relating to bullying/harassment and fatigue for report back.

Where to from here?

The key outcomes document advised the representatives' views will be tabled before Cabinet for review later this year. It was noted some of the issues raised before the Roundtable Review were originally scheduled to be effective from 1 January 2013. Therefore, it has been envisaged that the commencement of the regulations in question will be postponed until 1 January 2014 to allow the Roundtable Review to complete its deliberation and report back.

Queensland will continue to maintain separate coal and metalliferrous mining legislation, but has indicated it may add some provisions from the National Mine Safety Framework currently being discussed with the Commonwealth, New South Wales and Western Australia.

Transport safety harmonisation

In other harmonisation news, Australian jurisdictions have agreed on having single regulators for three transport industries:

  • heavy vehicles eg. trucks – National Heavy Vehicle Regulator, based in Queensland;
  • trains – National Rail Safety Regulator, based in South Australia; and
  • commercial sea vessels – Australian Maritime Safety Authority.

The National Laws governing the industries have now been passed in their host jurisdictions, with other states and territories to follow suit. The new regulatory regimes for these industries will take effect from 1 January 2013.

What it means for you

Employers who operate across jurisdictions must remain alert to differences in the WHS laws between the various jurisdictions, even those that have adopted a uniform WHS Act.

Businesses in Tasmania and South Australia must start preparing for the new WHS regime coming into effect next year to ensure compliance with the new system. Queensland businesses should be alert for future changes.

The WHS Act may not be the only applicable safety legislation in your jurisdiction. For example, Queensland retains separate safety laws for coal mining and metalliferrous mining. There are also electrical, transport and other safety laws that may apply to your industry.

A well-structured, flexible safety system can buffer organisations from the cost and uncertainty arising out of ongoing change, including:

  • high-level policy documents that do not rely on legislative minimums;
  • developing a robust safety culture for change after appropriate risk assessment controls;
  • prescriptive requirements pushed down to lower level documents like Standard Operating Procedures;
  • leadership and safety training which empowers workers to make safety focussed decisions;
  • a safety framework based on hazard identification and risk management and higher order controls, rather than legislative minimums.

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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.