The 1 January 2012 deadline for implementation of the model Work Health and Safety Act 2011 (Cth) ('WHS Act') has come and gone. Each of the states, territories and Commonwealth are still at different stages. However, it is worth noting that some jurisdictions made great efforts to ensure full implementation by the deadline, while others continue to seek thoroughness over expedience.
2. Jurisdictions fully enacted
Australian Capital Territory
The Australian Capital Territory set and followed the 1 January 2012 date of commencement. As well, the subordinate Regulation and multiple codes of practice were sent through parliament in readiness of the Legislation commencing. As a result, the ACT went from partial readiness to full implementation within less than a month.
The WHS as well as the Regulation and Codes of Practice were all up and running on 1 January 2012. Both the Regulation and Codes were made within quick succession of each other (the 7th and 9th of December respectively). Heavy emphasis was given to the transitional nature of these two legislative instruments.
New South Wales
NSW passed their WHS Act early in 2011, ready for a 1 January 2012 commencement, yet the Regulations still had not been sighted in November. However, the Work Health and Safety Regulation 2011 (NSW) was indeed in place for 1 January 2012, with transitional arrangements implemented to help employers. The Codes of Practice, while still yet to be adopted late last year, are more or less in force, with more codes to take force throughout the year.
The Northern Territory successfully passed their legislation to be ready for a 1 January 2012 commencement. To illustrate the Northern Territory's eagerness to be ready, the Work Health and Safety (National Uniform Legislation) Regulation 2011 (NT) was made and notified on 30 December 2011. However, rather than the Regulation and Codes of Practice being wholly enforced as well, transitional measures have been implemented until all workplaces are ready for the harmonised scheme.
Queensland (as the first jurisdiction to adopt the model WHS Act last year) have their Act, Regulation and Codes of Practice in place. While endeavouring to implement the legislation expeditiously, Queensland still sought to amend the legislation where they saw fit to suit specific Queensland needs. Several changes in their codes of practice were made, though several previous codes remain in place with slight amendments.
3. Jurisdictions partly enacted
South Australia went from partial enactment to a standstill and decided that deferment was a more suitable path. A far cry from the original commitment to a 1 January 2012 commencement, on 29 November 2011 the South Australian Parliament instead adjourned debate on the bill until 14 February 2012 due to on-going costs concerns, particularly in the housing industry, raised in the 29 November 2011 sitting of the Council. The bill was re-introduced into the Legislative Council and the second reading speech re-inserted into Hansard on 16 February 2012. Debate is on-going.
As a result, the date of implementation is now up in the air. However, SafeWork SA remains vigilant in its readiness for the new laws.
Along with South Australia, Tasmania did an about-face on their stance of implementation. The Work Health and Safety Bill 2011 (Tas) passed both houses on 1 December 2011. However the Legislative Council passed the bill with a major amendment - the starting date from 1 January 2013. It would appear that upon closer consideration of the legislation, and considering the goal of 'national harmonisation' had already failed due to inactivity by Western Australia and Victoria, Tasmania too decided to further consider the implication of national standard WHS laws for local businesses regarding costs and legislative interpretation of matters such as duty of care. It is worth noting that the 1 January 2013 date was inserted directly into the legislation, replacing 'a day to be proclaimed'.
The Tasmanian government's position indicating that it does not intend to adopt the model Regulations in their entirety still remains. The bill will be reconsidered in Tasmanian parliament in March this year
4. Other jurisdictions
The Western Australian government remains steadfast in its intention to defer. SafeWork WA and the Department of Commerce are seeking to ensure jurisdictional consistency in the implementation of any amendments to its current OH&S legislation. At this point, no legislation is before parliament.
The Victorian government maintained their stance on deferment of the harmonised provisions for 12 months. As a result, the existing Occupational Health & Safety Act, Regulation and Codes remain in place. It would appear that 1 January 2012 was never realistically in the sights of the Victorian Government.
Nature of Transitional Arrangements
As previously mentioned, a no-moratorium approach was originally decided upon as the way of implementing the new WHS Acts.
Instead, various jurisdictions in full implementation of the new WHS legislation have introduced national transition principles easing employers, employees and regulators into the new regime.
Key elements of these transitional arrangements include:
- Recognising existing information, records or other documentation that is the same as WHS requirements
- 12 to 18 months transitional periods regarding training requirements changes
- Retraining or reassessment needed if requirements substantially differ
- Six to 12 months transition periods (in most cases 12 months) for new duties or requirements
- Up to 24 months for new obligations where, for reasons beyond their control, industry might have difficulty in complying.
As exemplified by the WorkCover Authority of NSW, WorkCover and its Inspectors will consider relevant circumstances before taking any compliance action. As a result, the need for employers (and inspectors) to have a period of adjustment will be considered a 'relevant circumstance' relative to compliance action.
6. Draft Workplace Bullying Code of Practice
One code of practice that may require substantial transitional lenience is the proposed workplace bullying code which is aimed at preventing bullying in the workplace. In a wide-ranging code intended to 'stamp out' bullying in the workplace, everyone in a workplace will now have a legal responsibility to prevent bullying, where the primary duty will rest on those conducting a business or undertaking. What amounts to bullying will be 'repeated, unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.'
Early observations of the code point out the heavy burden placed on employers (both large and small) irrespective of who is accused of behaving in a bullying manner.
The reason given for introducing the bullying code is to cater to the interests of increasing workplace productivity, since bullying can result in staff distress, anxiety, physical illness, depression and even suicide.
However, those concerned about implementing a 'one-size-fits-all' workplace bullying code cite the extra resources required by employers to ensure the bullying code is followed.
The argument is in fact that the code will have an adverse effect on productivity, particularly for small businesses with already limited time and money.
This draft code of practice is expected to be released in first half of 2012.
Watch this space.
The states and territories who managed to implement the model WHS Acts in time for the 1 January 2012 commencement date certainly acted expediently. Their efforts ought to be commended. What is all the more impressive about the end result is that they implemented Regulations and Codes of Practice barely even out of the public comment phase before each jurisdiction could send them through their parliaments.
States and territories could be vastly contrasted in their efforts. Northern Territory government worked over time to have their Act, Regulation and Codes in place for 1 January. Yet the expedience of the Northern Territory makes the stance of Tasmania and South Australia all the more surprising. WA and Victoria have not even introduced the model Act into parliament. It was always a given that they would follow through on their 2013 deferral.
The transitional approach taken by some jurisdictions is understandable. While a no-moratorium approach was originally agreed upon, governments implementing the legislation have taken a softer approach. Whilst New South Wales has kept to the deadline, harmonisation nationally appears to still have a way to go.
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