Steps to harmonisation:
a history and overview
Rex Hoy
CEO, Safe Work Australia
Work Health and Safety in Australia
• In Australia, the Commonwealth, states and territories
are responsible for regulating and enforcing work health
and safety.
• Although many similarities exist between the laws there
are some differences that can cause difficulties.
• The importance of harmonised work health and safety
laws has been recognised by the Council of Australian
Governments and the Productivity Commission.
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The Inter-Governmental Agreement
• The Inter-Governmental Agreement was signed in July
2008 by the Prime Minister and the Premiers/Chief
Ministers of all Australian states and territories.
• The IGA provides for:
• the development and maintenance of model
legislation, including compliance and enforcement
policies, and
• the establishment of a new independent national
agency - Safe Work Australia - to drive reform of
work health and safety and workers’ compensation
• All parties are to complete implementation of the model
laws by end of 2011
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The IGA – the reform objective
• The fundamental objective of the reform covered by the IGA is
to produce the optimal model for a national approach to work
health and safety regulation and operation which will:
– Enable the development of uniform, equitable and effective
safety standards and protections for all Australian workers;
– Address the compliance and regulatory burdens for
employers with operations in more than one jurisdiction;
– Create efficiencies for governments in the provision of
work health and safety regulatory and support services;
and
– Achieve significant and continual reductions in the
incidence of death, injury and disease in the workplace.
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National Review into Model OHS Laws
• The Federal Government established a review in 2008 to report on
the optimal structure and content of a model act that is capable of
being adopted by all jurisdictions.
• The review was conducted by an independent advisory panel,
Robin Stewart-Crompton, Barry Sherriff and Stephanie Mayman.
• The main findings related to:
– scope and coverage of model legislation, including definitions
– workplace-based consultation, participation and representation
provisions
– enforcement and compliance, and
– regulation-making powers and administrative processes.
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What is model legislation?
• Workplace Relations Ministers considered the review panel
recommendations and agreed on the policy underpinning
the model legislation.
• It consisted of a model Work Health and Safety (WHS) Bill
supported by model Regulations and Codes of Practice.
• Workplace Relations Ministers asked Safe Work Australia
to develop the model legislation.
• Jurisdictions ‘mirror’ the model provisions with a new Act or
amending their current work health and safety legislation
• Local variation only where necessary to conform to the
local legislative environment.
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Key provisions of the model WHS Act
• Duties of care are not defined by the nature of
employment relationship – captures new and evolving
work arrangements
• Protects all types of ‘workers’
• Positive duties for officers to exercise ‘due diligence’
• Duty to consult with workers and other duty holders
• Protection against discrimination and coercion
• Unions have a right to enter workplaces
• Significant increase in penalties
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Duties of care
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Duty of a person conducting a business
or undertaking (PCBU)
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Duty of officers
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Duty of workers and others
• Workers
– Must take reasonable care
for themselves and others
– Comply with any
reasonable instruction
– Co-operate with any
reasonable policy or
procedure
• Other persons at the
workplace
– Duty similar to workers
Who is a worker?
A person who carries out work for a
person conducting a business or
undertaking in any capacity, including as:
• Employee
• Contractor or subcontractor
• Employee of a contractor or
subcontractor
• Employee of labour hire company
• Outworker
• Apprentice or trainee
• Student on work experience
• Volunteer
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Penalties for breaches of duty of care
Categories based on degree of ‘culpability’ and risk/degree of harm
Category 1
Corporation: $3m
Individual as a PCBU or an officer: $600k / 5 years jail
Individual e.g. worker: $300k / 5 years jail
Category 2
Corporation: $1.5m
Individual as a PCBU or an officer: $300k
Individual e.g. worker: $150k
Category 3
Corporation: $500k
Individual as a PCBU or an officer: $100k
Individual e.g. worker: $50k
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Consultation and engagement
• PCBU must, so far as reasonably practicable:
– Consult with workers
– Consult, co-operate with and co-ordinate activities with other
persons who have a duty in relation to the same matter
• Health and Safety Representatives (HSRs) for work groups
– Must be established on request from a worker
– Can direct unsafe work to cease and issue provisional
improvement notices, but only if trained
• Health and Safety Committees
– Must be established within 2 months where requested by HSR,
or 5 or more workers
• Issue resolution procedures
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Right to refuse unsafe work
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Role of Unions
• WHS entry permit holder can enter to inquire into
suspected breaches, as well as to consult and advise
workers
– subject to permit and member eligibility requirements,
protections and accountability
• Aligned with requirements in the Fair Work Act 2009.
• No notice for suspected breach
• 24 hours notice to consult, advise or obtain documents
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Compliance and Enforcement
• Enforceable undertakings
• Inspectors
– broad powers of entry to workplaces
– can issue improvement, prohibition, non-disturbance
and infringement notices
– assist in issue resolution
• Review of decisions
– Two stage process of internal review (of inspectors
decisions) and external review
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Draft model WHS Regulations
– key issues
• Harmonisation of existing regulations
• Level of prescription
• Risk Management – model laws focussed on the
outcome, not the process
• Australian Standards – referenced only where
necessary
• Interaction with other safety related legislation
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Priority model Codes of Practice
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Managing work health and safety risks
Consultation
Work environment and facilities
Asbestos – management and removal
Hazardous chemicals – safety data sheets and labelling
Hazardous manual tasks
Noise
Prevention of falls
Confined spaces
Facilities for construction sites
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1st stage model Codes of Practice
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Construction hazards
Traffic management
Fatigue
First aid
Bullying
Safe design – plant, structures
Diving
Abrasive blasting
Forestry
Welding
Spray painting
Managing risks of hazardous chemicals
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Milestones already met
Date
Milestone
3 July 2008
IGA signed by the Prime Minister and all Premiers
and Chief Ministers
18 September
2009
Safe Work Australia Act enacted
1 November 2009 Safe Work Australia established
11 December
2009
Model Work Health and Safety Act endorsed by the
Ministerial Council
10 August 2011
Ministerial Council approval of:
•Model WHS Regulations;
•Priority model codes; and
•Compliance and enforcement policy
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Future milestones
Date
Throughout 2011
January 2012
Post January 2012
Milestone
State, territory and Commonwealth
governments introducing and
passing the model legislation
Implementation of model legislation
Further development of model codes
and guidance material.
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Beyond 2012
• Implementation monitored by Council of Australian
Governments’ (COAG) Reform Council under National
Partnership Agreement to Deliver a Seamless National
Economy
• Proposed amendments to be decided by Ministerial
Council at the national level – if agreed, then all
jurisdictions must adopt the amendment
• Evaluation
• Review every 5 years
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Evaluation framework
• My colleague Dr Peta Miller will be presenting a poster
on the evaluation framework for work health and safety
in Australia.
• Safe Work Australia will evaluate the effectiveness of
the new model legislation as well the new National
Strategy 2012 -2022 that is currently being developed.
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Further Information
Website
www.safeworkaustralia.gov.au
Email
model.legislation@safeworkaustralia.gov.au
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