Queensland is the only State to have passed the new OH&S
laws, but others are moving fast.
Federal Workplace Relations Minister Chris Evans spoke about the
OH&S harmonisation at the ACTU OHS and Workers'
Compensation Conference in Brisbane on 13 April 2011. He addressed
two particular areas of concern – the union right to
prosecute for breaches of health and safety duties, and the reverse
onus of proof.
New South Wales fast-tracks harmonisation
On 5 May 2011, the NSW Liberal Government tabled two Bills which
not only introduce the model Act in accordance with the
harmonisation timeline but also fast-track many of the changes
contained in the model legislation.
The Work Health and Safety Bill 2011 is proposed to
commence on 1 January 2012 in line with the harmonisation
time-frame. It will be supplemented by Model Work Health and Safety
Regulations and Codes of Practice. Importantly, the Bill will take
the jurisdiction for OH&S offences away from the NSW IRC and
prosecutions will now be instituted for summary offences in the
Local Court (which will have the jurisdiction to fine up to
$50,000) or the District Court.
The Occupational Health And Safety Amendment Bill 2011
was introduced simultaneously to immediately amend the current
Occupational Health and Safety Act 2000 (NSW). Important
the reverse onus of proof will be removed;
directors and officers will no longer be liable for actions of
the corporation. New provisions will change the current section 26
to impose a duty on officers of a corporation to exercise due
diligence to ensure that the corporation complies with its
occupational health and safety duties;
the amendments made to the duties will only affect acts and
omissions occurring on or after the date of assent; and
trade unions will no longer be able to commence proceedings
Both Bills were passed by the lower house and are currently
before the NSW Legislative Council.
As the national model Work Health and Safety Bill does
not include diving provisions, the Queensland Government says that
"the new legislation for safety in recreational water
activities ensures the strict safety standards in Queensland's
diving industry are maintained."
Meanwhile, harmonisation Bill reintroduced by South Australian
South Australia on 7 April 2011 became the first jurisdiction to
introduce a Bill that mirrored the model Act, but former Industrial
Relations Minister Bernard Finnigan, who was responsible for the
Bill, abruptly resigned from Cabinet shortly after.
The Bill was subsequently withdrawn and a spokesperson for new
Industrial Relations Minister Patrick Conlon has stated that
"The Bill was withdrawn from the Upper House to allow
Minister Conlon to meet with industry representatives and hear
their concerns about the Bill, as the Minister has only recently
taken carriage of the portfolio."
On 24 May 2011, the State Energy Minister, Michael O'Brien,
on behalf of the Industrial Relations Minister reintroduced the
Bill which mirrors the model laws, but retains the State's
unique tripartite review committees, which can recommend changes to
Western Australia still participating in harmonisation
Although Western Australia was somewhat reluctant, it has
continued to take part in the harmonisation process. The Western
Australian Government has stated that it is likely to adopt
significant portions of the model laws when it enacts its version
of the legislation. The areas which have been flagged as possible
departure points by the Western Australian Government include:
the maximum quantum of the penalties;
right of union entry provisions;
powers of Health & Safety Representatives to direct work to
cease and to issue provisional improvement notices; and
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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