28 November 2014
Practice Group:
Labor, Employment
and Workplace Safety
New WA Work Health & Safety Bill and OFSC
Dispenses with Requirement for AS 4801
Accreditation
By John Makris, John Rodney, Erica Elliott and Matthew Parker
Western Australian Government Releases Consultation Draft WHS Bill
The Western Australian (WA) Government has introduced its long awaited Work Health
and Safety Bill 2014 (Bill) and is currently seeking public feedback on the draft legislation.
WorkSafe WA Commissioner Lex McCulloch said that the Bill includes the core
provisions of the model WHS Bill, but it has been refined to maintain the compliance
burden at an acceptable level, "reduce red tape, and ensure it is in the best interests of
WA businesses".
The model provisions that have been excluded from the Bill include:
a. provisions that allow for health and safety representatives to direct the cessation of
unsafe work
b. clauses allowing unions to enter a workplace with a WHS entry permit
c. provisions placing the burden of proof on those that have been accused of
discriminatory conduct.
The draft Bill includes the same maximum penalties as the model WHS laws despite the
WA Government indicating in the past that it would not adopt the high maximum fines
contained in the model WHS law.
The public comment period closes on 30 January 2015.
Western Australia is the second last Australian jurisdiction to introduce the model Bill.
Victoria is the only other State that has not tabled the harmonised laws.
Changes to the Australian Government Building and Construction Work
Health and Safety Accreditation Scheme
From 1 January 2015, employers will no longer be required to obtain AS/NZS 4801:2001
(AS 4801) certification before tendering for Commonwealth construction projects.
This has been announced ahead of a plan to free up the Federal Safety Commissioner to
target unsafe companies, to cut red tape, boost competition and ensure safety standards
are enhanced.
Under the current Australian Government Building and Construction OHS Accreditation
Scheme (Accreditation Scheme), it is a requirement that a company's work health and
safety management system (SMS) has been certified to AS 4801 (or the equivalent
international standard) by an accredited certification body before accreditation can be
considered.
AS 4801 establishes an audit framework principally for use by third party bodies that are
asked by an organisation to conduct an independent audit of the organisation's SMS.
New WA Work Health & Safety Bill and OFSC Dispenses with Requirement
for AS 4801 Accreditation
The move was originally flagged in February by a Department of Employment discussion
paper and report published in June which highlighted that the Accreditation Scheme's
requirements already incorporate AS 4801 requirements and are, therefore, duplicative.
It has been suggested that the certification requirement creates a barrier to entry for
small builders because the duplicative accreditation criteria creates unnecessary delays,
increases costs and involves unnecessary red tape that adds no value to the audit
process.
Removing the prerequisite will allow the Office of the Federal Safety Commissioner to
better focus on underperforming builders, ensure timely compliance audits and save
building companies seeking Scheme accreditation may months of time and thousands of
dollars.
However, it will still be important to be aware of the standards. While Codes of Practice,
Australian Standards and mining regulator's guidelines are not legal documents, these
documents provide guidelines for companies and builders who wish to be accredited and
also act as an important advisory tool. These documents are also regularly tendered in
evidence to support a prosecution's case and supplement expert evidence for a breach of
any respective safety law.
Other key changes coming into force from 1 January 2015 include:
a. exempting Commonwealth funded projects involving single dwelling houses from
requiring the use of an accredited company in order to increase competition and
enable smaller builders to compete
b. permitting unaccredited builders to undertake Commonwealth funded work when
they are in a joint venture with an accredited company and operate under the
partner's accredited systems
c. increased site audits
d. the introduction of a risk-based compliance model will be introduced so that more
audit resources and support can be directed to companies that require further
improvement
e. giving high performing companies the opportunity to be accredited for up to six
years, with a more streamlined reaccreditation process to minimise paperwork and
compliance costs.
Authors:
John Makris
john.makris@klgates.com
+61.2.9513.2564
John Rodney
john.rodney@klgates.com
+61.2.9513.2313
Erica Elliott
erica.elliott@klgates.com
+61.2.9513.2346
Matthew Parker
matthew.parker@klgates.com
+61.2.9513.2491
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New WA Work Health & Safety Bill and OFSC Dispenses with Requirement
for AS 4801 Accreditation
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