10:07 am, Tuesday 10 January, 2012
The term “harmonisation” has been used to describe how the Commonwealth and each State/Territory is working towards a consistent set of workplace health and safety laws. The harmonisation of safety legislation has been underway since 2008, and will take affect January 2012 (with the exception of four States). This article will provide an explanation of some of the key terms and changes that may affect workplaces.
With various industry and stakeholder involvement, SafeWork Australia has developed a Model Work Health and Safety (WHS) Act, Model WHS Regulations and Draft Mining Regulations, which will be used to create harmonisation across Australian health and safety laws.
At present, Queensland, Northern Territory, ACT and New South Wales have all adopted the legislation, albeit with some changes and transitional considerations that differ between the States/Territory. Victoria, Western Australia, Tasmania and South Australia have agreed to the principals of harmonisation, but due to various reasons have delayed the implementation of the laws for at least 12 months. For these States, their existing Occupational Health and Safety laws will be administered.
To support the Model Act and Regulations, Safework Australia has also developed Model Codes of Practice. There are currently 11 finalised Codes of Practice and another 15 draft Codes released for public comment. The development of Codes of Practice will be on-going, however where there is no Model Code in relation to a specific topic, the existing State/Territory Code of Practice can be used.
The amount of change that workplaces in each State/Territory face is dependent on how closely the pre-existing legislation mirrors the new harmonized laws. Each jurisdiction has announced transitional periods to allow workplaces to comply with the new obligations. For example, New South Wales has allowed a grace period of up to 24 months for compliance with substantially different obligations. ACT has provided a 12month transition period for compliance in all areas, except working with energized electrical installations, where a grace period of only 6 months was provided.
The harmonized Model WHS Act supports similar objects to jurisdiction’s pre-existing Acts, being to protect the health, safety and welfare of workers and the public, however there are some changes to the way this is managed. Whereas the duty of care would refer to an employer previously, the term has changed to a “person conducting a business or undertaking” or PCBU. WHS laws can therefore impose duties further outside the scope of a direct employer-employee relationship.
A duty of care is now imposed on “Officers” of a company. Officers may be directors or secretaries of the company, board members who have significant decision-making power over the company and trustees, to name a few. The duty of care can apply to several duty holders at the same time, ensuring that no one can pass off their WHS responsibilities.
There is an emphasis on consultation and communication within the new Act that extends beyond previous Acts. Duty holders are required to consult with workers, but also with other Duty Holders. The definition of worker has also broadened to include volunteers.
Depending on the State/Territory, there may be substantial changes in relation to consultative arrangements and union rights of entry. The Act prescribes actions and timeframes for forming WHS Committees, electing Health and Safety Representatives and issue resolution activities. The ‘Right of Entry’ may be a new concept to some States. It refers to representatives of union organizations who may enter a workplace as a WHS Entry Permit Holder, and under certain circumstances, follow up on suspected WHS violations.
The Model WHS Regulations support the Act and impose duties on PCBU’s to eliminate or manage the risks in certain areas. The Regulations require the identification of hazards and control of risks following a hierarchy. Risk Assessments are only required in certain circumstances where straight-forward controls are not readily known or available.
In some areas just the words have changed, such as Safety Data Sheet instead of Material Safety Data Sheet and hazardous manual handling to hazardous manual tasks. In other areas, wording has been changed to help manage the issues better. For example, previously, hazardous substances and dangerous goods were legislated separately. In the harmonized Regulations, they are managed together and termed “hazardous chemicals”. Job Safety Analysis, Work Method Statements or Safe Work Method Statements (SWMS) as they are known in different States/Territories, will be known only as SWMS.
For workplaces based in Queensland, ACT, New South Wales and Northern Territory, it is important to understand the changes to WHS laws and how they may affect operations. Visit the website for the State/Territory (as detailed below) to find more information.
Workplace Health & Safety QLD
WorkSafe Northern Territory
WorkSafe ACT
WorkCover NSW
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There have been several changes to Australia’s health and safety laws as a result of harmonisation. Workplaces are suffering from some confusion about what has changed and when these changes will take effect for their own States and Territories.
