Australia: Update on harmonised OHS legislation

The process of moving towards a harmonised national occupational health and safety system continues to create controversy and uncertainty, with some states indicating their intent to delay the commencement of harmonised laws.

We set out below a summary of the status of the Model Work Health and Safety Act in each jurisdiction.

Victoria, Western Australia and South Australia

The Victorian Government recently announced that it will seek to delay the introduction of the model legislation by 12 months, in order to determine its regulatory impact. Harmonised legislation is therefore unlikely to be implemented in Victoria until at least 1 January 2013.

The Western Australian Government has also expressed concerns about the timeframes for implementation, and has previously stated its intention not to adopt the model legislation in its entirety due to reservations about the content of the harmonised laws.

South Australia has introduced legislation to Parliament, which has not yet been passed. South Australia was the first state to introduce a version of the model Act, however, it was subsequently withdrawn following the resignation of its Industrial Relations Minister. While the legislation was reintroduced to Parliament, it has not progressed and the Legislative Assembly has voted to delay debate on the harmonised laws until February 2012.

Queensland, New South Wales, the Australian Capital Territory and the Commonwealth

Queensland was the first state to enact the model legislation earlier this year and was followed closely by New South Wales and more recently the Australian Capital Territory. The New South Wales legislation will commence on 1 January 2012, and it is expected that the Queensland and Australian Capital Territory legislation will also come into effect on 1 January 2012. However, if the Minister has not given notice of the commencement of the Australian Capital Territory legislation by 29 March 2012, it will come into effect by default on that date.

Last week, Commonwealth parliament passed the Work Health and Safety Bill 2011, which will cover employers under the Comcare scheme. The Commonwealth legislation will come into effect on 1 January 2012.

Tasmania and the Northern Territory

Tasmania and the Northern Territory have also introduced model legislation to Parliament. Neither have framed the legislation to start on 1 January 2012, and Tasmania has indicated that it would prefer that the model Regulations and Act commence at the same time (which may make a 1 January 2012 start date unrealistic).

Model Regulations and Codes of Practice

The model Regulations and priority Codes of Practice were released in September 2011 (although are subject to minor drafting changes).

In addition, Safe Work Australia recently released 15 Codes of Practice for public comment.

The period for public comment closed on Friday, 18 November 2011 for the following six of those further 15 Codes of Practice:

1. First Aid in the Workplace
2. Managing Risks in Construction Work
3. Preventing Falls in Housing Construction
4. Managing Electrical Risks at the Workplace
5. Managing Risks of Hazardous Chemicals
6. Managing Risks of Plant in the Workplace.

The period for public comment for the remaining nine Codes of Practice below closes on Friday, 16 December 2011:

1. Preventing and Responding to Workplace Bullying
2. Safe Design of Building and Structures
3. Excavation Work
4. Demolition Work
5. Spray Painting and Powder Coating
6. Abrasive Blasting
7. Welding and Allied Processes
8. Safe Access in Tree Trimming and Arboriculture
9. Preventing and Managing Fatigue in the Workplace.

In response to concerns about the timing for transitioning to harmonised laws, Federal Workplace Relations Minister, Chris Evans, recently announced that in sectors where the model Regulations will introduce a significantly different set of duties, businesses will not be expected to comply with them by 1 January 2012. It is unclear what sectors these transitional arrangements will apply to, however, Safe Work Australia has announced that South Australian and Tasmanian construction companies, and also employers in some jurisdictions engaged in electrical work or diving work, are likely to be given an additional 12 months to transition to the model Regulations.

Next steps

The harmonisation of occupational health and safety law is intended to replace the many largely State and Territory based systems that currently operate. This will be particularly beneficial for businesses which operate nationally. Employers need to ready their businesses for these new laws, including by auditing their policies and procedures to ensure that they will comply with the new laws.

If you would like any assistance preparing for the new occupational health and safety regime (including compliance training for managers or officers) or preparing submissions on the remaining draft Codes of Practice, please contact us.

For more information, please contact:

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.