State Of Play: Australian Work Health And Safety Laws.

The Harmonisation Plan And Model Laws

 

The Commonwealth, state and territory governments formally committed to harmonising work health and safety legislation in July 2008 when the Council of Australian Governments (COAG) signed the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA).

 

The IGA established the principles and practices for cooperation between the Commonwealth, states and territories to implement national model legislation.

 

Model Laws

 

In 2011, following an extensive review and consultation process, the model Work Health and Safety Act (model WHS Act), model WHS Regulations (model WHS Regulations) and the first stage of model Codes of Practice were finalised.

 

In terms of adoption:

 

• The Commonwealth, the ACT, the Northern Territory, New South Wales and Queensland adopted the model WHS Act and the model WHS Regulations on 1 January 2012;
• The model WHS Act and model WHS Regulations came into effect in South Australia and Tasmania on 1 January 2013;
• Western Australia is working towards modernising its health and safety laws in 2016-2017 (see further below); and
• The Victorian Government decided not to harmonise its WHS legislation with the model laws.

 

Mining Industries

 

Specific model WHS Regulations have also been developed for mining operations (WHS Mines Regulations). The WHS Mines Regulations have been adopted wholly or partially by some jurisdictions and not at all by others.

 

A summary of the regulatory frameworks for mining in each jurisdiction is set out below:

 

Jurisdiction	Mining Legislative Framework
Queensland	Mining regulated under industry specific mining Acts including Mining and Quarrying Safety and Health Act 1999, Coal Mining Safety and Health Act 1999 and associated regulations
New South Wales	The Work Health and Safety (Mines) Act 2013 and Work Health and Safety (Mines) Regulations 2014 commenced on 1 February 2015
Western Australia	New work health and safety legislation for the Western Australian resources sector is expected to be introduced in 2016-2017 (see further below)
South Australia​	The model WHS (Mines) Regulations commenced on 1 January 2014 as Chapter 10 of the Work Health and Safety Regulations 2012
Tasmania	The Mines Work Health and Safety (Supplementary Requirements) Act 2012  supported byMines Work Health and Safety (Supplementary Requirements) Regulations 2012commenced on 1 January 2013
Northern Territory	Mining regulated under general work health and safety legislation with some specific mining regulations – see Chapter 10 of the Work Health & Safety (National Uniform Legislation) Regulations
Victoria	Mining regulated under general work health and safety legislation with some specific mining regulations – see Part 5.3 of the Occupational Health & Safety Regulations 2007
Australian Capital Territory, Commonwealth	Mining regulated under general work health and safety legislation without specific mining regulations

 

 

Proposed Changes And Reviews

 

Review Of Model WHS Laws

 

In February 2004 COAG agreed that all governments would investigate ways in which the model laws could be improved with a particular focus on reducing red tape. The investigation is not a full review of the model laws, with a comprehensive review currently scheduled for 2016.

 

In its Issues Paper, Improving the model Work Health and Safety laws, Safe Work Australia observed that a number of areas of the regulations had been raised for national review. Safe Work Australia stated that in order to properly protect workers while avoiding unnecessary regulatory burden the model WHS laws need to be necessary, targeted, cost-effective, proportional, flexible and performance based.

 

Some of the areas of the regulations that were identified as imposing unnecessary burdens were:

 

• record keeping;
• notification obligations;
• first aid requirements;
• emergency planning; and
• some plant registration requirements

 

In addition to reviewing regulatory burdens the investigation was designed to examine the impact of the duties imposed on officers and whether this created a disincentive to take up officer roles, right of entry and other powers of union officials, as well as various powers of health and safety representatives. Additionally, the investigation was also intended to examine whether the model codes of practice can be made less complex and provide for increased jurisdictional flexibility balanced against the benefits of harmonisation for multi-jurisdictional employers.

 

The results of jurisdictional consultations and data and related research have been analysed and Safe Work Australia finalised a report with recommendations late last year which has been provided to COAG for consideration. Safe Work Australia is awaiting their response.

 

Action At The State Level

 

Some Australian jurisdictions legislated to undertake a separate review of their WHS laws.

 

South Australia's WHS laws were recently reviewed by RSC Advising Pty Ltd with a report released on 10 February 2015 which concluded that there were no major problems in the legislation itself. However, the report contained various recommendations that collectively suggested that more could be done to improve understanding of rights and obligations and to clarify certain elements of the law.

 

The recommendations included providing more guidance about the relationships and obligations where there are multiple Persons Conducting a Business or Undertaking (PCBUs) and making the regulations more user friendly.

 

The South Australian government has not yet responded to RSC Advising's report.

 

The NSW WHS Act is also required to be reviewed as soon as possible after 5 years of operation, so sometime in 2017.

 

Proposed Changes To Existing WHS Laws In Queensland

 

While reviews are taking place federally and in SA, there have already been some changes in Queensland.

 

In 2014 amendments were made that were intended to prevent unions from causing disruptions on worksites under the pretence of 'investigating safety breaches', and to reduce employers' compliance obligations to some aspects of their WHS management systems. Changes was also made that allowed for codes of practice adopted in Queensland to be approved, varied or revoked without requiring national consultation.

 

However, on 7 May 2015 the current Queensland government introduced the Work Health and Safety and Other Legislation Amendment Bill 2015 into parliament.  A number of the Bill's proposed amendments seek to reverse changes made in 2014 and others are designed to implement election commitments made by the government including:

 

• restoring the right of entry powers for WHS entry permit holders to gain immediate access to a workplace to inquire into a suspected contravention of the WHS Act;
• empowering trained Health and Safety Representatives to direct workers to cease unsafe work;
• amending the current incident notification requirements to include an additional requirement for employers to notify the regulator when a worker is absent for more than four days due to a workplace injury; and
• improving electrical safety by re-instating the Electrical Safety Commissioner, Electrical Safety Education Committee and Electrical Equipment Committee which were abolished in 2012.

 

The Bill has been referred to the Finance and Administration Committee for detailed consideration and its report is due by 6 July 2015.

 

The Position In Western Australia

 

Western Australia continues to explore its preferred path for modernising work health and safety laws.

 

General Industry

 

The Work Health and Safety Bill 2014 (WHS Bill) applies to industry generally and is the Western Australian version of the model WHS Act. The WHS Bill contains the core provisions of the model WHS Act with some modifications to suit the Western Australian working environment. A public comment period on the WHS Bill closed on 30 January 2015.

 

The WA Government is currently in the process of reviewing the comments and making amendments to the WHS Bill.

 

Resources Industries

 

In 2014, a Regulatory Impact Statement (RIS) process was undertaken by Marsden Jacob Associates to consult stakeholders on the options for the structure of resources safety legislation and, subsequently, to decide upon recommended actions. The Decision RIS was finalised in January 2015, recommending the unification of safety legislation for mining, petroleum and major hazard legislation, under one regulator, the Department of Mines and Petroleum (DMP).

 

The proposed consolidated Work Health and Safety (Resources) Bill (WHS (R) Bill) will consolidate safety provisions from six Acts including the Mines Safety and Inspection Act 1994 (WA). The DMP is currently preparing drafting instructions for the WHS (R) Bill and liaising with WorkSafe to ensure consistency with the WHS Bill. Apart from a few industry specific changes, the WHS (R) Bill will mainly consist of high-level generic health and safety provisions.

 

It is anticipated that a draft WHS (R) Bill will be available very soon followed by a further public consultation period from late June to mid-August 2015. Assuming the consolidated approach is approved, the WHS (R) Bill will be introduced to parliament by 30 April 2016.

 

Most of the detailed requirements will be in the regulations that accompany the Act. It is currently envisaged that the regulations will contain generic provisions as well as separate, sector-specific provisions to cover the particular requirements for mining, petroleum and major hazard facilities. The DMP is also liaising with the National Offshore Petroleum Safety and Environmental Management Authority, to ensure the regulations are aligned, where appropriate, with offshore petroleum safety requirements relating to Commonwealth waters. Dependent on the passage of the WHS (R) Bill, the DMP expects the regulations will come into effect by 1 December 2016.

 

Next Steps

 

There is plenty happening across the country in the WHS space. We will continue to monitor developments and provide further updates in due course.

 

 

For further information, please contact:

 

Maurice Thompson, Partner, Clyde & Co

maurice.thompson@clydeco.com

 

Jacinta Long, Partner, Clyde & Co

jacinta.long@clydeco.com

 
Jenni Priestly, Partner, Clyde & Co
jenni.priestley@clydeco.com

 

Nicholas Beech, Clyde & Co

nicholas.beech@clydeco.com