OHS LEGISLATION HARMONISATION
Over the years Australia has developed a system of occupational health and safety legislation that is based within the states. Currently each state and territory within Australia has its own version of occupational, or workplace health and safety legislation. This, in addition to legislation for Commonwealth workplaces, makes for nine different pieces of legislation within our country. It is easy to see how this system may have evolved in a country as large as Australia when we did not have the convenience of movement and information flow that we have now. Now, however having this type of duplication in health and safety legislation makes no sense and creates large inefficiencies for national businesses.
In July 2008 the states of Australia entered into an agreement that set the scene for harmonisation of occupational health and safety laws. This became known as the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. The process for reform was to review all current legislations as a basis for deciding upon a model work health and safety act. This was to be followed by model work health and safety regulations and codes of practice.
During 2009 and 2010 the model act was consulted on and finally agreed upon. The process has now moved to consultation on and development of the model regulations and codes of practice.
It is important to understand that this is not national legislation – rather it is a model legislation on which all state legislation is will be modeled. This will mean that Queensland will still have its own work health and safety legislation (Act, Regulation and Code of Practice), as will all the other states of Australia. Indeed, Queensland has already passed its legislation through Parliament and this legislation will commence on 1 January 2012.
What does it mean for business?
There is a lot of hype around these laws and it can all be very confusing. Our approach is to try and provide clear simple information. The general nature of the legislation is very similar to what we currently have, and if your business is providing a safe workplace where hazards and risks are effectively controlled then there will be very few changes that need be made. That said here are a few relevant points related to new requirements in the Work Health and Safety Act 2012.
1. Businesses have a duty for the health and safety of all workers:
This is as per usual and is the cornerstone of all Health and Safety legislation, however for those based in Queensland and NSW there is a change. Businesses and “undertakings” have a duty to ensure this “as far as reasonably practicable”. This provides business with the opportunity to show that they have been reasonably practicable by having effective and well documented systems in place. Previously Qld and NSW had absolute obligations.
The definition of worker now includes contractors.
2. Officers have a positive duty to ensure that the business complies with its duty:
This puts the onus onto those classed as “officers” of a company, organisation or any undertaking (including for example government departments, companies, partnerships and body corporates) to ensure health and safety. The concept of a positive duty means the officer must be proactive in their approach, and exercise “due diligence”.
The definition of an officer is extensive but generally will include those who make, or participate in making, decisions that affect the whole, or a substantial part of the corporation. This would include senior managers and owners.
3. Officers must exercise due diligence:
Due diligence is defined in the new Act and incorporates a number of elements. To summarise these; the officer must ensure that they keep up-to-date with health and safety knowledge, understand their organisational risks, ensure appropriate resources for health and safety and to ensure that the business or undertaking has processes for complying with its duties. The officer must also verify the use of the resources and processes.
4. Consultation is required for all key health and safety decisions:
This has been part of all other WHS/OHS Acts nationally, but is emphasised strongly in the new legislation. Demonstrating a consultative approach may require such things as; consulting with other duty holders, consulting with workers, facilitating the election of Health and Safety Representatives (HSR) or forming a Health and Safety Committee. The election of HSR’s and the formation of health safety committees are not expressly required by the act.
There is also now a requirement to have Issue Resolution process in place within a workplace.
For further information visit either of the following websites: