Harmonisation in Partial Disharmony – the Latest on the Workplace Health and Safety Landscape

The process of harmonising Australia’s Workplace Health and Safety (“WHS”) laws via the introduction of a model, mirror act and regulations (“Model Legislation”) in each state and territory jurisdiction has been partly successful.

Progress has been slow and has met with significant opposition in some states. There are still two non-participating states and in those jurisdictions that have introduced the Model Legislation, some of the model provisions have been varied.

Participating states and territories

Five jurisdictions introduced the Model Legislation from 1 January 2012 – the Commonwealth, New South Wales, Queensland, the Australian Capital Territory and the Northern Territory. South Australia and Tasmania joined them this year, with their Model Legislation commencing from 1 January 2013.

In Victoria, the Government has indicated that it will not adopt the Model Legislation in its current form, although it still supports the principle of harmonisation. The reason cited for its rejection of the Model Legislation was the cost to small business of transitioning to the new legislation.

In Western Australia, whilst the Government there is also committed to the principle of adopting harmonised laws, progress has been slow.  The Western Australian Government has indicated that it does not intend to adopt all of the Model Legislation but will adopt most of it.

In relation to timing, the Western Australian Government:

1. is conducting a comprehensive analysis of the possible impact of the model regulations and codes of practice on business, workers and the local economy and
2. will not consider adopting the Model Legislation until it is in a position to introduce separate mining safety laws and regulations, which it is currently updating.

Variations to the Model Legislation

There are significant variations to the Model Legislation:

1. Coverage – it has not been adopted in some jurisdictions for the mining industry.  Queensland and Western Australia will retain separate WHS legislation dealing with the mining industry.
2. Alterations to clauses in the Model Legislation have been or will be passed in some jurisdictions, meaning that the mirror is already showing signs of cracks.  These include the following variations in the jurisdictions referred to:
   1. New South Wales – allowing unions, not just the regulator, to prosecute employers for all lower level offences (Category 3 offences) plus other offences where the regulator has rejected a recommendation from the Director of Public Prosecutions to prosecute.
   2. South Australia – retaining the privilege against self-incrimination during the investigation process for health and safety breaches.  This privilege was partially dispensed within the Model WHS Act.
   3. Queensland – the Queensland Government conducted a roundtable review of the Model Legislation last year with key business groups and unions.  Outcomes from that review include the Government:
      • giving consideration to removing “contractors and subcontractors” from the definition of “workers”
      • considering whether right of entry powers should be removed from the Model WHS Act or amended
      • developing guidance on the meaning of “reasonably practicable” and how control is relevant to the assessment of whether something was reasonably practicable
      • and recommending that a number of the second stage model codes of practice (mainly construction-related) not be adopted in Queensland.

1. 4. Western Australia – the Government has indicated that there are 4 areas of the Model Legislation that it does not agree with and will not be adopting.  These areas are:
      • penalty levels – it considers that the proposed penalty levels could be unreasonably punitive and does not support the size of those increases
      • union right of entry – it considers that right of entry laws should be contained in industrial relations legislation rather than in WHS laws
      • the capacity of Health and Safety Representatives (“HSRs”) to direct cessation of work – it believes this decision should remain with individual workers and not be placed upon HSRs and
      • the reverse onus of proof in WHS related discrimination matters – the Government will not adopt this, considering that its inclusion is contrary to one of the issues that motivated the drive to harmonisation (being the reverse onus of proof that previously applied to prosecutions in some jurisdictions).

What do employers need to do?

Businesses that engage workers in any of the seven participating jurisdictions across Australia need to ensure that compliance with the requirements of the Model Legislation becomes a major focus if they have not done so already.

Businesses that engage workers in the two non-participating jurisdictions (Western Australia and Victoria) are also well advised to adopt compliance practices as if the Model Legislation currently applied in those states. In Victoria, much of the existing Occupational Health and Safety Act 2004 (Vic) is similar to the Model Legislation, with the Model Legislation adopting a number of features of the current Victorian legislation. Furthermore, if there is a change of government in Victoria at the 2014 election, then the Model Legislation is likely to be adopted shortly thereafter.

Persons conducting a business or undertaking have a duty under the Model Legislation to ensure, so far as is reasonably practicable, that workers are not exposed to health and safety risks.

Company officers have a positive duty to apply due diligence to ensure business compliance with the Model Legislation.

As a result, businesses should ensure that they:

1. 1. conduct appropriate risk assessments on an ongoing basis and act on those assessments to control the risks identified
   2. put a due diligence plan in place to help achieve compliance with the Model Legislation and to assist officers to meet their own specific obligations;
   3. adopt appropriate health and safety systems and procedures
   4. meet their consultative obligations, both with workers and with other duty holders who may have similar and overlapping obligations and
   5. provide appropriate training for duty holders and for employees on an ongoing basis.

The major increases in penalties and the due diligence requirements on duty holders, together with the primary duty of care on persons conducting a business undertaking mean that all businesses must place WHS issues high on their list of priorities.  Failure to do so could prove extremely costly, not only from a health and safety outcome point of view but also due to the risk of facing prosecution proceedings and increased penalties.