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Status update on the model work health and safety laws

Status update on the model work health and safety laws

The process to harmonise Australia’s OHS laws with a scheduled implementation date of 1 January 2012 is underway. 

There will still be differences in the laws post harmonisation

Each state’s parliament has to pass separate bills to implement the harmonisation process. This will still mean that some differences in OHS laws will still exist between the states.  What those differences will be is starting to become apparent.  At present, three jurisdictions have passed bills based on the model legislation.

  • New South Wales has retained the right of unions to initiate prosecutions,
  • South Australia has retained its tripartite review committee which will review and update the model legislation every five years. 
  • Queensland has essentially adopted the model laws without changes.

Other jurisdictions such as Western Australia (which is yet to introduce a bill) has indicated it will not adopt the model provisions relating to penalty levels, right of entry, health and safety representatives’ ability to stop work, and reverse onus of proof in discrimination matters.

What is changing?

The model laws will result in changes to OHS obligations in all jurisdictions. Businesses should be taking action now to ensure that they are ready to comply with the new obligations when they come into effect.

Precisely what will change will depend on the state in which you are operating, but the principal matters changing are:

  • in those states where there is a reverse onus of proof for director’s liability - this will be repealed and replaced with the duty of due diligence for officers;
  • the primary duty of care for workplace safety (to, so far as is ‘reasonably practicable’, ensure the health and safety of workers and ensure that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business) will be imposed on any “person conducting a business”. This makes it clear the obligations do not rely on any employment relationship.  This will also mean that OHS duties duty may be imposed on individuals such as partners in a business. Specific obligations will also continue to imposed on persons who have “management or control” of a workplace (such as owners of construction sites);
  • positive duties of consultation will be imposed with:
    • other duty holders;
    • workers in relation to:

• identifying hazards and assessing risks from work;

• making decisions to eliminate risks;

• making decisions about the adequacy of facilities for the welfare of workers;

• proposing changes that may affect health or safety of workers;

• making decisions about procedures for resolving health and safety issues and monitoring of health and workplace conditions; and

• carrying out activities prescribed in the regulations.

  • A duty of due diligence will be imposed on “Officers” (as defined in the Corporations Law).  Officers will be required to take reasonable steps to:

• keep up to date with work health and safety matters;

• gain an understanding of the hazards and risks associated with operations of the business;

• ensure the business uses appropriate resources to identify hazards and to eliminate or minimise risks;

• ensure the business has appropriate processes to receive and consider information about incidents, hazards and risks and respond in a timely way;

• ensure the business has and implements processes for complying with its duties and obligations; and

• ensuring verification of these matters.

a. the penalties for breach of the legislation will be significantly increased; and

b. depending on your industry other changes may effect you such as a requirement to register a lot more plant or additional requirements set out in the initial codes of practice.

What should your business be doing now?

As a minimum your Business should:

  • ensure familiarity with the new OHS obligations. All employees and persons involved with the management or control of the workplace have attended training on the legislation, the expanded obligations, the codes of practice and any new procedures in place. Attendance at this training should be compulsory and records of attendance should be kept;
  • revise contractual arrangements to comply with OHS obligations and that due diligence can be shown;
  • implement clear procedures for carrying out and documenting risk assessments and complying with risk management obligations;
  • update procedures, safety notices and guidelines to meet the obligations and ensure the workforce is trained in relation to any changes;
  • train and encourage employees, contractors and visitors to report any risks or suspected breaches;
  • ensure dispute resolution procedures in contracts allow labour-hire workers, volunteers and contractors to raise any concerns they may have about risks or breaches of OHS laws;
  • facilitate constructive discussions with HSRs and the workforce about OHS issues; and
  • educate company directors/officers as to their obligations.