OHS Harmonisation: current state of play

With new health and safety legislation now in force across a number of jurisdictions, it is important that businesses operating across state and territory borders take stock of the changing regulatory environment. 

Despite intentions for all jurisdictions to be up and running by 1 January 2012, it perhaps comes as no surprise that we’re witnessing a less than harmonious introduction of the model laws. 

Businesses also need to be mindful that the model Work Health and Safety (WHS) laws involve more than a new set of Acts - comprehensive Regulations and Codes of Practice also form part of the reform agenda.

The ‘state of play’ 

So what is the current ‘state of play’?  Where do the various jurisdictions stand in relation to enacting their own WHS Acts, Regulations and Codes of Practice?

The key changes

For an overview of the key changes that will flow from the model WHS laws, refer to our earlier alert in relation to the implications for directors and for the mining industry and to our soon to be released Directions 2012 Report.  In short, these include:

• positive duties of due diligence being placed on officers and senior managers;

• consultation of workers about matters that will directly impact on their safety and the reasons for any policies or decisions affecting their safety;
• the primary duty for safety shifting to a “person conducting a business or undertaking” instead of an “employer”. This imposes the duty to take all reasonably practicable steps for safety on a broader group of people in recognition of the changed nature of business and contractual arrangements;
• a significant increase in maximum penalties – up to $3 million for a corporation and $600,000 for an officer and a potential five-year jail term (per breach); and
• requiring a mining work health and safety management plan in the designated mining states (Queensland, New South Wales and Western Australia) - that is a plan which identifies key risks and how they will be managed. 

Codes of Practice

Model Codes of Practice are practical guides to achieving the standards of health, safety and welfare required under the model WHS laws.  Codes of practice are admissible in court proceedings under the model WHS Act and Regulations. Courts may regard a Code of Practice as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

General model Codes of Practice have now been approved by Safe Work Australia, after public consultation.  They include:

1. How to Manage Work Health and Safety Risks
2. Managing the Work Environment and Facilities
3. Work Health and Safety Consultation, Co-operation and Co-ordination
4. Managing Noise and Preventing Hearing Loss
5. Hazardous Manual Tasks
6. Confined Spaces
7. Managing the Risk of Falls at Workplaces
8. Preparation of Safety Data Sheets for Hazardous Chemicals
9. Labelling of Workplace Hazardous Chemicals
10. How to Manage and Control Asbestos in the Workplace
11. How to Safely Remove Asbestos

Of the five jurisdictions who have introduced the model WHS laws (CTH, ACT, NSW, NT and QLD), all but the ACT have approved these eleven model Codes of Practice.  The ACT has adopted the majority of these new Codes but also retained a number of pre-reform Codes about control and removal of asbestos instead of adopting the corresponding model Codes.

Consultation on second tranche of Codes, including mining specific Codes, recently closed.  They can be found on Safe Work Australia’s website. 

Where no model Code of Practice has yet been developed, all five jurisdictions have opted to preserve their corresponding pre-reform Code of Practice.  It is expected these pre-reform Codes will be replaced as more model Codes are made available.  However, the approach for adopting the model Codes varies for each State and Territory.  For instance, QLD has indicated it will review the model Codes on a case by case basis before adopting them whereas NSW as indicated it will replace its pre-reform Codes as model Codes become available. 

Extra-territorial issues

Businesses operating across multiple states and territories need to be mindful of inter-border variation. Safety systems tailored to satisfy pre-harmonisation regulation in one or multiple jurisdictions may no longer be adequate.  It is therefore critical that businesses undertake a review of their systems and approach to OHS more generally, considering the scope of the reforms in this area.

It is not only ‘employers’ who need to exercise caution.  Safety legislation also captures designers, manufacturers, importers, suppliers, installers, constructors and commissioners of plant, substances or structures.  If these activities are undertaken in a jurisdiction where the model WHS laws are in force then those laws now apply to your business, irrespective of whether your business employs people in that jurisdiction.

For instance, if a business manufactures products in Western Australia but supplies them to businesses in New South Wales, the new WHS Act provisions in effect in NSW, including the significantly increased penalties, will apply to those activities.

Transitional provisions 

OHS harmonisation has created a number of transitional issues for the jurisdictions who have the new model WHS laws.  Anticipating these issues, Safe Work Australia has published a comprehensive set of Transitional Principles designed to guide the development of necessary transitional provisions. 

While the Principles are intended to ensure that all jurisdictions adopt harmonised transitional arrangements, there are variations between the five jurisdictions who have introduced the model WHS laws.  For instance, the Northern Territory has opted to introduce grace periods of between 12 and 18 months in relation to a number of the duties and requirements imposed by the new laws. Queensland, on the other hand, has taken the view that its transitional arrangements will not include grace periods. 

Conclusion

OHS harmonisation provides a significant opportunity for a refresh and improvement in the safety of Australian workplaces.  The objective of the new laws is to encourage businesses to identify key changes and to review their current situation to ascertain what can be done better, not simply to comply with the new regime, but to tangibly improve safety.

Businesses need to review their OHS practices: 

• If operating in a harmonised jurisdiction(s) to ensure they are compliant with the new laws and will be compliant with all changes by the end of the transition periods;
• If operating  in non-harmonised jurisdiction(s), but providing products or services to entities in harmonised jurisdiction(s) – to ensure compliance with the requirement of the harmonised jurisdiction to the extent services are provided in harmonised jurisdiction(s); and
• Otherwise, in non-harmonised jurisdictions, businesses should be preparing to make any changes required to comply with the harmonised laws that will shortly be implemented anticipating a similar position may be taken with respect to transitional provisions to that taken by Queensland.