The states and territories are in varying states of readiness
for new OHS laws, with the Queensland Work Health and Safety
Act 2011 having commenced on 1 January 2012. Mirror
legislation commenced in the Commonwealth, Australian Capital
Territory, New South Wales and the Northern Territory jurisdictions
at the same time. South Australia recently voted to defer debate
until February this year. The Tasmanian Legislative Council voted
to delay the commencement of the harmonised laws until January
2013. Victoria and Western have not yet introduced the mirror
Work Health and Safety Bill to Parliament, and are
unlikely to enact a harmonised Act for at least another year.
Some of the significant changes made by the Work Health
Safety Act 2011 include:
direct obligations will be imposed on officers of bodies
designed to ensure that those bodies comply with their duties
regulation of discriminatory conduct for OHS type issues will
be expanded and other obligations will be introduced prohibiting
coercion and misrepresentation
requirements for authorisations will increase, as workplaces,
plant and substances, work and prescribed qualifications will have
to be authorised
there will be a new regime for the imposition of OHS duties,
with the focus on the persons conducting a business or undertaking
'workers' and other individuals at workplaces will have
duties, bearing in mind that 'worker' will be defined more
broadly than traditional employment
the maximum penalties that can imposed for breaches will
increase significantly. For a category one offence by a body
corporate, the maximum penalty will be $3,000,000 and $600,000 or 5
years imprisonment for an individual
the regulator's prosecution decisions will be subject to a
formal system of scrutiny
the regulator will be able to seek a host of new remedies when
offences are committed, such as adverse publicity orders,
restoration orders and training orders
inspectors will have to be more cautious when exercising their
powers or face the prospect of compensation orders by those whose
property is damaged
inspectors will have new powers to apply for search warrants to
seize evidence of offences
prohibition notices issued by inspectors will be able to be
where prohibition notices are not complied with (or cannot be
issued) the regulator will be able to take remedial action to make
inspectors will have a new notice at their disposal, a
non-disturbance notice, to preserve sites where notifiable
incidents have occurred
injunctions will also be available to compel compliance with
non-disturbance, prohibition and improvement notices
inspectors will be able to be accompanied by others to assist
them exercising their powers at a workplace
production of documents and answering of questions at the
request of inspectors will be subject to much greater regulation.
Importantly, people will not be excused from producing documents or
answering questions on the basis of incriminating themselves, but
the answer or document will not generally be admissible against
Employers should consider taking the following steps to comply
with the harmonised laws:
training for "officers" and "workers" on
training for those involved in OHS duties as it affects them,
e.g. right of entry, investigations etc
incorporate individual OHS duties into position
check whether definition of "worker" expands
responsibilities as PCBU
amend union right of entry policies for OHS right of entry
ensure procedures in place for concurrent duty holders to work
update emergency response plans for notification of
most importantly, review OHS management systems for compliance
with new Act, codes of conduct and regulations.
If you have any queries regarding these changes, please do not
hesitate to get in touch. Happy New Year!
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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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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