Safe Work Australia has taken the latest step in the
harmonisation of Australia's occupational safety laws with the
release of the Model Work Health and Safety Regulations for public
As part of the package Safe Work Australia has also released an
Issues Paper and draft Model Codes of Practice.
At over 550 pages, the draft Model WHS Regulations defy easy
analysis, and you can expect more commentary as its implications
are better understood. What is clear at this stage is that
employers should seize the opportunity to comment and seek
clarification of how the new model WHS regime will work in
practice, and how it fits within appropriate risk management
What's in the draft Model WHS Regulations ...
The draft Model WHS Regulations cover:
representation and participation
general workplace management
plant and structures
major hazard facilities
review of decisions under the WHS Regulations, including those
relating to licences, accreditation, and exemptions.
... And what's not
The chapter on mines has not been released with this draft. The
policy is still being developed, and there is no timeframe for its
release, although the issues paper says it will be available for
Draft Model Codes of Practice
A dozen draft Model Codes of Practice have also been released
for public comment, with more on the way. Most are specific to an
industry or risk, but three will affect everyone across the
How to Manage Work Health and Safety Risks
How to Consult on Work Health and Safety
Managing the Work Environment and Facilities
These Codes are meant to be practical guides and hence are a
very important element in the day-to-day management of workplace
safety, but they can also be used by courts as evidence of what is
known about a hazard, risk or control, and in determining what is
They are not however mandatory; there can be compliance with the
WHS Act and Regulations where an employer follows another method,
such as a technical or an industry standard, if it provides an
equivalent or higher standard of work health and safety than the
Safe Work Australia is seeking feedback on whether they are
helpful and easy to understand, and reflect the current state of
knowledge and technological developments in managing various
Penalties and enforcement
The issues paper sets out various offences and the proposed
financial penalties for each. It is important to note however that
although under the model WHS Act the maximum monetary penalty for
corporate offenders for standalone offences is set at $30,000,
there is a possibility this will be doubled.
Infringement notices will still be a feature of workplace safety
law, and the issues paper sets out the types of offences which
could be the subject of an infringement notice (generally minor or
less serious offences, for which no state of mind need be
The current proposal is that states and territories use existing
generic legislation for infringement notice schemes to enact and
apply a scheme for the model WHS legislation. While expedient, this
would slightly compromise the intended goal of harmonisation.
Other options for regulator are providing information, education
and advice, issuing an improvement notice, or administrative
penalties such as licence suspension and cancellation.
So what happens next?
The period for public comment closes on Monday 4 April 2011.
Safe Work Australia then finalises the model WHS Regulations
package in June, for the approval of the Workplace Relations
The Model Work Health and Safety Act and Regulations are
expected to come into effect across Australia in January 2012, but
employers should not be sitting back and relaxing. This
consultation period is a great opportunity to shape the final Model
Regulations, and gives a valuable indication of the future shape of
workplace safety laws, so employers can (and should) start getting
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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