Australia: State Of Play - Australian Work Health And Safety Laws

There are ongoing developments with the progress of harmonisation of work health and safety laws across Australia. At one end of the jurisdictional spectrum the harmonisation, or modernisation, process is still to be implemented, while at the other end recommendations have already been made to improve the new laws. In the middle of it all some harmonisation of mining specific laws has occurred.

The harmonisation plan and model laws

The Commonwealth, state and territory governments formally committed to harmonising work health and safety legislation in July 2008 when the Council of Australian Governments (COAG) signed the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA).

The IGA established the principles and practices for cooperation between the Commonwealth, states and territories to implement national model legislation.

Model laws

In 2011, following an extensive review and consultation process, the model Work Health and Safety Act (model WHS Act), model WHS Regulations (model WHS Regulations) and the first stage of model Codes of Practice were finalised.

In terms of adoption:

  • The Commonwealth, the ACT, the Northern Territory, New South Wales and Queensland adopted the model WHS Act and the model WHS Regulations on 1 January 2012;
  • The model WHS Act and model WHS Regulations came into effect in South Australia and Tasmania on 1 January 2013;
  • Western Australia is working towards modernising its health and safety laws in 2016-2017 (see further below); and
  • The Victorian Government decided not to harmonise its WHS legislation with the model laws.

Mining industries

Specific model WHS Regulations have also been developed for mining operations (WHS Mines Regulations). The WHS Mines Regulations have been adopted wholly or partially by some jurisdictions and not at all by others.

A summary of the regulatory frameworks for mining in each jurisdiction is set out below:

Jurisdiction

Mining Legislative Framework

Queensland

Mining regulated under industry specific mining Acts including Mining and Quarrying Safety and Health Act 1999, Coal Mining Safety and Health Act 1999 and associated regulations

New South Wales

The Work Health and Safety (Mines) Act 2013 and Work Health and Safety (Mines) Regulations 2014 commenced on 1 February 2015

Western Australia

New work health and safety legislation for the Western Australian resources sector is expected to be introduced in 2016-2017 (see further below)

South Australia

The model WHS (Mines) Regulations commenced on 1 January 2014 as Chapter 10 of the Work Health and Safety Regulations 2012

Tasmania

The Mines Work Health and Safety (Supplementary Requirements) Act 2012 supported by Mines Work Health and Safety (Supplementary Requirements) Regulations 2012 commenced on 1 January 2013

Northern Territory

Mining regulated under general work health and safety legislation with some specific mining regulations – see Chapter 10 of the Work Health & Safety (National Uniform Legislation) Regulations

Victoria

Mining regulated under general work health and safety legislation with some specific mining regulations – see Part 5.3 of the Occupational Health & Safety Regulations 2007

Australian Capital Territory, Commonwealth

Mining regulated under general work health and safety legislation without specific mining regulations

Proposed changes and reviews

Review of model WHS laws

In February 2004 COAG agreed that all governments would investigate ways in which the model laws could be improved with a particular focus on reducing red tape. The investigation is not a full review of the model laws, with a comprehensive review currently scheduled for 2016.

In its Issues Paper, Improving the model Work Health and Safety laws, Safe Work Australia observed that a number of areas of the regulations had been raised for national review. Safe Work Australia stated that in order to properly protect workers while avoiding unnecessary regulatory burden the model WHS laws need to be necessary, targeted, cost-effective, proportional, flexible and performance based.

Some of the areas of the regulations that were identified as imposing unnecessary burdens were:

  • record keeping;
  • notification obligations;
  • first aid requirements;
  • emergency planning; and
  • some plant registration requirements

In addition to reviewing regulatory burdens the investigation was designed to examine the impact of the duties imposed on officers and whether this created a disincentive to take up officer roles, right of entry and other powers of union officials, as well as various powers of health and safety representatives. Additionally, the investigation was also intended to examine whether the model codes of practice can be made less complex and provide for increased jurisdictional flexibility balanced against the benefits of harmonisation for multi-jurisdictional employers.

The results of jurisdictional consultations and data and related research have been analysed and Safe Work Australia finalised a report with recommendations late last year which has been provided to COAG for consideration. Safe Work Australia is awaiting their response.

Action at the state level

Some Australian jurisdictions legislated to undertake a separate review of their WHS laws.

South Australia's WHS laws were recently reviewed by RSC Advising Pty Ltd with a report released on 10 February 2015 which concluded that there were no major problems in the legislation itself. However, the report contained various recommendations that collectively suggested that more could be done to improve understanding of rights and obligations and to clarify certain elements of the law.

The recommendations included providing more guidance about the relationships and obligations where there are multiple Persons Conducting a Business or Undertaking (PCBUs) and making the regulations more user friendly.

The South Australian government has not yet responded to RSC Advising's report.

The NSW WHS Act is also required to be reviewed as soon as possible after 5 years of operation, so sometime in 2017.

Proposed changes to existing WHS laws in Queensland

While reviews are taking place federally and in SA, there have already been some changes in Queensland.

In 2014 amendments were made that were intended to prevent unions from causing disruptions on worksites under the pretence of 'investigating safety breaches', and to reduce employers' compliance obligations to some aspects of their WHS management systems. Changes was also made that allowed for codes of practice adopted in Queensland to be approved, varied or revoked without requiring national consultation.

However, on 7 May 2015 the current Queensland government introduced the Work Health and Safety and Other Legislation Amendment Bill 2015 into parliament. A number of the Bill's proposed amendments seek to reverse changes made in 2014 and others are designed to implement election commitments made by the government including:

  • restoring the right of entry powers for WHS entry permit holders to gain immediate access to a workplace to inquire into a suspected contravention of the WHS Act;
  • empowering trained Health and Safety Representatives to direct workers to cease unsafe work;
  • amending the current incident notification requirements to include an additional requirement for employers to notify the regulator when a worker is absent for more than four days due to a workplace injury; and
  • improving electrical safety by re-instating the Electrical Safety Commissioner, Electrical Safety Education Committee and Electrical Equipment Committee which were abolished in 2012.

The Bill has been referred to the Finance and Administration Committee for detailed consideration and its report is due by 6 July 2015.

The position in Western Australia

Western Australia continues to explore its preferred path for modernising work health and safety laws.

General Industry

The Work Health and Safety Bill 2014 (WHS Bill) applies to industry generally and is the Western Australian version of the model WHS Act. The WHS Bill contains the core provisions of the model WHS Act with some modifications to suit the Western Australian working environment. A public comment period on the WHS Bill closed on 30 January 2015.

The WA Government is currently in the process of reviewing the comments and making amendments to the WHS Bill.

Resources Industries

In 2014, a Regulatory Impact Statement (RIS) process was undertaken by Marsden Jacob Associates to consult stakeholders on the options for the structure of resources safety legislation and, subsequently, to decide upon recommended actions. The Decision RIS was finalised in January 2015, recommending the unification of safety legislation for mining, petroleum and major hazard legislation, under one regulator, the Department of Mines and Petroleum (DMP).

The proposed consolidated Work Health and Safety (Resources) Bill (WHS (R) Bill) will consolidate safety provisions from six Acts including the Mines Safety and Inspection Act 1994 (WA). The DMP is currently preparing drafting instructions for the WHS (R) Bill and liaising with WorkSafe to ensure consistency with the WHS Bill. Apart from a few industry specific changes, the WHS (R) Bill will mainly consist of high-level generic health and safety provisions.

It is anticipated that a draft WHS (R) Bill will be available very soon followed by a further public consultation period from late June to mid-August 2015. Assuming the consolidated approach is approved, the WHS (R) Bill will be introduced to parliament by 30 April 2016.

Most of the detailed requirements will be in the regulations that accompany the Act. It is currently envisaged that the regulations will contain generic provisions as well as separate, sector-specific provisions to cover the particular requirements for mining, petroleum and major hazard facilities. The DMP is also liaising with the National Offshore Petroleum Safety and Environmental Management Authority, to ensure the regulations are aligned, where appropriate, with offshore petroleum safety requirements relating to Commonwealth waters. Dependent on the passage of the WHS (R) Bill, the DMP expects the regulations will come into effect by 1 December 2016.

Next steps

There is plenty happening across the country in the WHS space. We will continue to monitor developments and provide further updates in due course.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jacinta Long
Maurice Thompson
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions