Most Read Contributor in Australia, September 2016
Harmonisation will not commence across Australia in unison on 1
January 2012 as had been agreed by the Workplace Ministers Council.
Much to the chagrin of the Commonwealth Government and the agency
responsible for OHS harmonisation – Safe Work Australia -
some jurisdictions, in particular Victoria and Western Australia,
are deferring the implementation of the new laws.
For businesses that operate across multi-jurisdictions, this has
the opposite effect of what was the underlying purpose of OHS
harmonisation – having the same safety laws operating
Who's in and who's out
The current situation regarding the progress of the Work Health
& Safety legislation in each of the 9 jurisdictions is as
Transitional arrangements for those who have harmonised
The Commonwealth has attempted to make it easier for States and
Territories to deal with the change to harmonisation by giving
industry in those jurisdictions in which model laws will commence
on 1 January 2012, a year's 'free pass' in
which they will not face prosecution for failing to comply.
Businesses will also be able to delay implementing the model Work
Health and Safety Regulations for 12 months or more
("transitional period") if implementing the new
Regulations results in a new or significantly different set of
What does this mean for your business?
If your business operates across a number of jurisdictions which
include a "harmonised" jurisdiction, then you will be in
the position of having to still comply with the new laws as well as
the old ones. By aiming to have your business compliant with the
new laws, you are likely to be compliant with the old ones and
there is merit in still moving towards the new laws in
jurisdictions where the harmonised laws are pending.
If your business operates only within a jurisdiction that has
deferred the new laws, you should assume that the new laws will be
operating within 12 months and your business would be best served
spending the additional "grace" period to understand how
the new laws operate and what changes are required.
One interesting aspect of the laws not having been introduced
uniformly is that it is likely to mean that the Courts in the
"harmonised" jurisdictions are going to be the ones that
take the lead in interpreting the new laws. This means, despite the
fact that a substantial part of the laws are based on current
Victorian legislation, it will be judges in NSW and Queensland who
will have the first opportunity to interpret the laws, including
some of the more significant ones to do with duties of
"officers" and the meaning of a business' obligation
to "consult, co-operate and co-ordinate" with other duty
We outlined the issues regarding the key changes in more detail
in the publication "
You may like to use our Practical Guide to the Workplace
Health & Safety Act in your business. This document can be
here. This document outlines the practical aspects of the
Workplace Health & Safety Act, as they apply in all
jurisdictions where the new laws have been commenced. Both
WorkCover NSW and Comcare Australia have requested the use of this
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.
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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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