Update WHS Harmonisation

Update on WHS harmonisation: Where are we at?

The planned commencement date for the Model Work Health and Safety Laws is now a few short months away. In this article we go ‘around the grounds' and provide an update of the progress of reform in each Australian State and Territory.

In order to participate in the harmonisation process, each jurisdiction must enact the Model Work Health and Safety Act and introduce the Model Work Health and Safety Regulations through its own Parliament.

The current state of adoption and implementation of the model laws in each jurisdiction is mixed. What is clear is that there will no longer be a truly national commencement date of 1 January 2012. The table below provides an overview of what is now expected in each jurisdiction.

Summary

Jurisdiction	Will (or likely to) come into effect in January 2012	Will not come into effect in January 2012	Unclear when laws will come into effect
NSW	Likely to come into effect 1 January 2012 Laws relating to officers' due diligence duties are already in effect	-	-
QLD	Likely to come into effect 1 January 2012	-	-
VIC	-	Will most likely come into effect on 1 January 2013	-
WA	-	Likely that there will be no change before 1 January 2013	-
TAS	-	-	Uncertain, no legislative action. Commitment to have laws in place by 1 January 2012
NT	-	-	Uncertain, no legislative action. Commitment to have laws in place by 1 January 2012
SA	-	-	Bill currently before parliament, commencement date unclear.
ACT	Likely to come into effect on 1 January 2012	-	-
CTH	-	-	Bill currently before parliament, commencement date unclear.

Recent developments

The Act

The Model Work Health and Safety Act¹(Model Act) has been relatively settled for some time.

The current version of the Model Act was recently updated on 23 June 2011. Safe Work Australia (which is the body with custodianship of the laws and regulations) has released a table²setting out some of the changes to the laws, which generally related to technical or procedural issues. The basic principles within the Model Act remain unchanged from earlier drafts.

Some of the key changes under the harmonised laws which will be common to all the jurisdictions are:

the qualification of the duties of care owed under the Model Act through inclusion of the test of ‘reasonably practicable' (and the removal of the reverse onus in some jurisdictions)
imposition of a ‘positive' duty on officers to exercise due diligence
penalties substantially increased (maximum penalty for a company now $3million and $600k or 5 years imprisonment for an officer)
the privilege against self incrimination is abrogated but self incriminating information provided is not admissible into evidence in a prosecution of the person providing it (unless the evidence is provided voluntarily)
introduction of prohibition on discriminatory, misleading and coercive conduct in some jurisdiction, and
increased provisions and attention given to consultation, issue resolution and incident notification.

Of course, the relevance of these changes will vary from jurisdiction to jurisdiction depending on current laws.

The Regulations

The Federal, State and Territory ministers agreed on the final terms of the Model Work Health and Safety Regulations (Model Regulations) in August. While there was general agreement, Victoria and Western Australia noted some reservations to the giving full acceptance to the Model Regulations without seeking further information, which we discuss below.

Some significant changes have been made to the nature of the duties expressed in the new Model Regulations. The Model Regulations have not been adopted in any jurisdiction as yet.

Queensland Workplace Health and Safety has prepared the following documents which are a useful guide for Queensland obligation holders:

A comparison of Workplace Health and Safety Regulations 2008 with the Model Regulations, and
A table outlining the applicable codes of practice under the Model Regulations.

These documents are attached to this update as Appendix 1 and Appendix 2.

The Codes of Practice

On 10 August 2011, the Workplace Relations Ministers agreed on the first tranche of Codes of Practice. In all, 11 have now been agreed and are available in final form on the Safe Work Australia website.

On 26 September 2011, further Codes of Practice were released. All draft codes can be found on the Safe Work Australia Website³. Safe Work Australia has commenced a public consultation period on the new Codes of Practice.

The Compliance and Enforcement Policy

The compliance and enforcement policies of each regulator play a significant role in informing us about how safety laws will be enforced. The Model Compliance and Enforcement Policy⁴acknowledge the importance of a nationally consistent approach to compliance and enforcement and detail the approach to be taken by regulators in monitoring and enforcing compliance with the Model Act.

Progress of the laws by jurisdiction

The progress of enacting the laws in each jurisdiction is proceeding according to the political and procedural needs of each jurisdiction.

Below is a snapshot of the current state of the laws in each jurisdiction. Not every change in each state has been highlighted, just some of those which we consider to be most important. Clients are reminded that the common changes described above will apply to each jurisdiction. State specific presentations will be held in each Freehills office to discuss the changes.

Jurisdiction	Progress of the Model Work Health and Safety Act
QLD	Has a Model WHS Act been introduced? Yes, and passed by Parliament. What is its current status? It comes into effect on a date to be proclaimed. Current statements from the government confirm this will be on 1 January 2012. It will not apply to or will have a limited effect on mining and a range of other laws, such as the Electrical Safety Act 2002, and the Transport (Rail Safety) Act 2010. The mining legislation (coal, hard rock and LNG) will likely remain in place and not harmonised throughout 2012. Under the transitional provisions of the Model Act, certain arrangements made before 1 January 2012 will continue to have effect as if the Workplace Health and Safety Act 1995 had not been repealed, including: principal contractor appointments enforceable undertakings elections for Workplace Health and Safety Committees, and codes of practice. What has the regulator said? Workplace Health and Safety Queensland provides a range of guidance materials regarding implementation of the Workplace Health and Safety Act⁵, including fact sheets and answers to frequently asked questions.
SA	Has a Model Act been introduced? Yes, introduced into Parliament but not yet passed into law. What is its current status? At this stage the WHS Bill has been introduced to Parliament and read a second time. However, there are still a number of stages in the legislative process that must be completed before the Bill is enacted and becomes law. The Minister for Industrial Relations, Russell Wortley, published a media release on the Bill recently in which he stated that he understood the safety benefits of the WHS Bill will exceed compliance costs and in the long term the new laws are expected provide a significant return for the National economy. He also addressed concerns raised by the Opposition regarding union right of entry, which does not exist under current safety laws in SA. If this continues to be a contentious issue, there is a prospect that it could delay the passing of the Bill, or that it could be defeated in the upper house. What has the regulator said? Safe Work SA's website⁶indicates that the Model WHS Act, Regulations and Priority Codes of Practice will take effect in South Australia from 1 January 2012, if approved. The website also provides some preliminary guidance material (Fact Sheets) for businesses as well as a document entitled ‘Australian Work Health and Safety Regulators Framework for a common approach to inspection work', which is aimed at ensuring consistency across regulators.
TAS	Has a Model Act been introduced? No. What is its current status? The Minister for Workplace Relations, David O'Byrne, published a media release on 21 September confirming the Tasmanian Government's intention to table the Work Health and Safety Bill 2011 later this month. It remains the Government's intention for the Model Act, once passed, to commence operation from 1 January 2012.
VIC	Has a Model Act been introduced? No. What is its current status? On 28 September 2011, the Victorian Government issued a media release confirming that it would seek to delay the introduction of both the Model Act and the Model Regulations by 12 months. It seeks time to determine the regulatory impact of the new laws, and will undertake its own regulatory impact review. On this basis, there will be no change in Victorian Laws until at least 1 January 2013. What has the regulator said? This position is now being echoed by the Victorian safety regulator. WorkSafe Victoria's website states that the Victorian Government has ‘called on the Commonwealth to defer for 12 months the implementation of nationally harmonised occupational health and safety laws.' It goes on to state that ‘...in the meantime, WorkSafe will continue to enforce Victoria's existing Occupational Health and Safety Act 2004, Occupational Health and Safety Regulations 2007 and Compliance Codes.'
NSW	Has a Model Act been introduced? Yes, and passed by Parliament. What is its current status? The Model Act will commence full operation in New South Wales on 1 January 2012. The passing of the Occupational Health and Safety Amendment Act 2011 (NSW) facilitated the immediate introduction of the ‘reasonably practicable' qualifier and the new officer's due diligence obligations. These amendments to the Occupational Health and Safety Act 2000 (NSW) commenced on 7 June 2011. The Model Act does not amend any other safety legislation currently in force in New South Wales.
WA	Has the Model Act been introduced? No. What is its current status? The position in Western Australia is unclear, but it seems unlikely that any form of harmonised legislation will be enacted by 1 January 2012. While there is nothing to suggest that Western Australia does not remain committed to the harmonisation approach there have been calls for the implementation of legislation to be delayed. Western Australia has also committed to keep separate mining safety legislation. The new mining safety legislation is expected to closely follow the Model Act, and incorporate both the Core and Non-Core mining regulations.
NT	Has the Model Act been introduced? No. What is its current status? The draft Bill is scheduled for public release on 18 October 2011. It remains the intention for the Model Act to operate from 1 January 2012.
ACT	Has the Model Act been introduced? Yes. What is its current status? The Model Act was passed by the ACT Parliament on 20 September 2011. It is expected to commence operation on 1 January 2012. The Criminal Code will apply to the Model Act in the ACT.
CTH	Has the Model Act been introduced? Yes, it has been tabled as a Bill in the House of Representatives. A second Bill (dealing with transitional arrangements) has been tabled in the Senate. What is its current status? The Bills were introduced into the Federal parliament on 6 July 2011. On that day, the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Senator Evans, stated that ‘The new framework will replace nine different OHS Acts and more than 400 pieces of OHS regulation and ensure that equal standards and protections apply across the nation.' Both were referred to a Senate Inquiry. This Inquiry has now reported back and suggested changes to some of the offence provisions, and to the provisions prohibiting unlawful discrimination. A dissenting report was provided by Coalition Senators, which opposed these changes. It is anticipated that the laws will be debated and voted on in this session of parliament.

Impact on other safety laws is not clear

While the public focus of harmonisation has been on mainstream occupational safety and health there are a range of practical issues that continue to emerge. One of these is the considerable (and ongoing) debate of safety regulation in the mining industry. In addition, other safety-related areas, such as rail safety, are currently undergoing similar harmonisation processes.

Other than in jurisdictions where the Model Act has been enacted, it is not yet known what the interaction will be between this legislation and other specific safety laws, such as those applying to dangerous goods and electrical safety.

Endnotes