Safe Work Australia, which is responsible for developing
harmonised work health and safety laws, has issued draft model Work
Health and Safety Regulations and model Codes of Practice for
public comment before 4 April 2011.
Model OHS laws
The Model Work Health and Safety Bill 2009 was recently
agreed by the Commonwealth and state/territory governments (except
WA, which has noted objections to aspects of the legislation). The
intention is to harmonise OHS laws by implementing uniform
legislation in each state and territory. The model laws are
intended to be implemented by December 2011, with commencement on 1
However, the position taken by the WA government and the NSW
government, which has more recently objected to aspects of the
proposed model Act, may impact whether the model laws proceed at
all, or if they proceed within the stated time frame.
The model Work Health and Safety Regulations contain the
prescriptive requirements that assist employers to meet their
general duties under the model Act to ensure workplace health and
As expected, the Regulations are voluminous (over 500 pages) and
deal with a broad range of matters including employee consultation,
right of entry, control measures for particular hazardous work (eg
work involving fall hazards), regulation of plant and structures,
construction work and hazardous chemicals.
A breach of the Regulations may lead to a fine of up to $30,000,
or an on-the-spot fine of up to $6,000.
Draft codes of practice
Under s 275 of the model Act, an approved code of practice is
admissible in proceedings as evidence of whether or not a duty or
obligation under the Act has been complied with. The court may
regard the code as evidence of what is known about a hazard or risk
and rely on the code in determining what is reasonably practicable
in the circumstances. Therefore, it is imperative that employers
follow the codes.
Safe Work Australia has released the following codes for
How to Manage Work Health and Safety Risks
How to Consult on Work Health and Safety
Managing the Work Environment and Facilities
Facilities for Construction Sites
Managing Noise and Preventing Hearing Loss at Work
Hazardous Manual Tasks
How to Manage and Control Asbestos in the Workplace
How to Prevent Falls at Workplaces
How to Safely Remove Asbestos
Labelling of Workplace Hazardous Chemicals
Preparation of Safety Data Sheets for Hazardous Chemicals.
Although it is likely that these codes will be implemented at
the same time as the model Act (from January 2012), development and
implementation of further codes and guidance material will continue
beyond December 2011.
The Regulations require businesses that commission construction
work on a structure (eg a building or bridge) to consult with the
designer of the structure. The Regulations also prescribe certain
consultation requirements for operators of major hazard
The draft Code dealing with consultation makes it clear that the
model Act will require employers to consult, so far as is
reasonably practicable, with not only employees but also
contractors, sub-contractors and their employees, labour hire
personnel, volunteers and any other people working for the business
who are directly affected by a health and safety matter. The draft
Code states that businesses are not expected to do the impossible,
but are required to take a proactive and sensible approach to
consultation, for example:
It may not be reasonably practicable to consult with workers on
Urgent responses to a risk may limit consultation.
Businesses only need to consult with workers who could be
directly affected by a particular health or safety matter (not all
Right of entry
The Regulations set out the training that needs to be undertaken
by a union official who seeks to enter a workplace to investigate,
inspect, consult or advise on workplace health and safety issues.
The training must be provided or approved by the relevant state or
territory regulator (eg WorkCover). When a union official provides
a business with a notice of entry to inquire into a suspected
contravention or to inspect employee records, the notice must
include particulars of the suspected contravention and a
declaration that the contravention, and any records to be
inspected, relate to or affect a worker who is eligible to be a
member of the union.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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