Businesses operating in a harmonised jurisdiction can now look to their Safety Regulators for further details of the transitional arrangements. These arrangements are based on the transitional principles Safe Work Australia has developed and published. We look at a number of the key changes that may affect your business.
For those jurisdictions which are now "in harmony", their pre-harmonisation Acts and Regulations have been repealed and the new WHS laws have commenced operation. The transition period will preserve the operation of specified parts of the pre-harmonisation laws which we discuss below.
Codes of Practice in each jurisdiction will also incrementally be replaced with those published by Safe Work Australia. In the meantime, the pre-harmonisation Codes of Practice will apply.
Duties of care
All duties that were imposed under the pre-harmonisation laws will cease to operate on the date that the model WHS Act and Regulations commenced. However, it will still be possible to prosecute offences that occurred before the commencement date under pre-harmonisation laws in relation to the duties that existed at that time.
Upstream duty holders
Upstream duty holders are those businesses involved in:
- Installing, constructing or commissioning of articles, plants or machinery.
Whether you will be subject to the new duties under the WHS laws depends on when the activity in question took place.
- Stage 1: These are activities which only start after the enactment of the new WHS laws. These will be subject to the new WHS duties imposed on upstream duty holders.
- Stage 2: These are activities that were started before the commencement of the new WHS laws but are incomplete and will continue to be subject to the relevant pre-harmonised legislation, if any, for the following period of time after commencement of the model WHS Act:
- Design, installation and construction: 2 years
- All other upstream activities: 1 year
After that period of time, the activity will be subject to the relevant duty in the new WHS laws.
- Stage 3: These are activities that were fully completed before the new laws commenced. They will be subject only to the relevant duty under pre-harmonised legislation, if any.
There will be cases where it may not be clear whether the activity has been fully completed. This will be important for some upstream holders with quite new duties of care, for example for designers in NSW.
Appointments and elected positions
The new WHS regime recognises comparable appointments and elected positions made under pre-harmonised legislation. This includes the positions of HSR, deputy HSR, HSC member and WHS entry permit holder, and appointment/ election processes commenced under pre-harmonised legislation for those positions.
If a work group has been determined under pre-harmonisation laws, then it will be taken to be determined under the model WHS Act upon commencement. From this point on, variations to the work groups will be guided by the model WHS Act.
However, there may be existing work groups which do not comply with the requirements of the model WHS laws. Where this is the case, the group may continue for up to one year after commencement of the model WHS Act. After that time, a new group which complies with the model WHS laws must be established if a request is made by a worker under section 50.
Health & Safety Representatives and Committees
All of the above transitions are relevant to businesses governed by Queensland jurisdiction. However, the transitional arrangements governing existing HSRs and HSCs are specific to Queensland only.
The model WHS transitional regime will recognise existing HSR appointments for most purposes. However, where the model WHS Act training requirements differ substantially to the existing HSR training requirements, the relevant jurisdiction must legislate for one of the two options described in the principles document.
Similarly, the model WHS regime will recognise existing HSCs, disqualifications from the position of HSR and, subject to a 3 month sunset period, election processes for appointment of HSRs.
New South Wales
In NSW, OHS representatives elected after 1 January 2010 are deemed to be HSRs under the model WHS Act from 1 January 2012. It is possible to be elected as an OHS representative, and consequently considered an HSR until 31 March 2012. After this date has passed, a new election must be conducted under the model WHS legislation.
Deemed HSRs who have already completed the OHS consultation training will be eligible to attend gap training instead of the 5 day initial training. The gap training is compulsory. Where the HSR has been elected after 1 January 2012, they will be able to attend an approved 5 day training course in work health and safety and a 1 day refresher course each year during their term of office.
Agreed consultation policies and procedures
The new WHS laws recognise policies and procedures agreed under pre-harmonisation legislation where those policies and procedures comply with the requirements of the model WHS laws.
If existing policies and procedures do not comply with the requirements of the model WHS laws, the transitional laws will allow the continuation of those agreed policies and procedures for up to one year after commencement of the model WHS laws.
Authorisations and licences
Generally, authorisations such as licenses, registrations, etc., issued under pre-harmonisation laws will be recognised by the new WHS regime until the term of the authorisation expires. Any relevant mutual recognition principles will also be recognised on the same basis.
All new incidents must be notified under the new WHS procedures. These are essentially the same as existed in most jurisdictions but your business should review how it currently reports its incidents to the regulator. Reporting to your insurer alone is not sufficient for any fatality, serious injury, serious illness or dangerous incident.
Construction and hazardous work
Principal Contractor Appointments
A valid appointment of a principal contractor under pre-harmonised OHS Act and Regulation (NSW), and the former WHS Act (Qld) remains in force and valid under the new WHS laws.
There are several key transitional arrangements for hazardous work, which businesses should be mindful of. These relate to:
- Emergency procedures for fall arrest systems
- Qualifications of safety observer for electrical work on energised equipment
- Diving work
The new rules will generally be operational from 1 January 2013 in NSW, whilst in Queensland they become operational on 1 January 2012.
Specific to NSW, residual currency devices (RCDs) are now required to be tested regularly by a competent person to ensure the devices are working effectively. This testing requirement will not be operational in NSW until 1 January 2013.
Investigations and prosecutions
By and large, the applicable enforcement and compliance provisions will be those contained in the WHS legislation applicable at the time of the alleged breach. In other words, alleged offences against pre-harmonisation laws must be prosecuted under those laws, even if an investigation into them first started after commencement of the WHS laws.
What's the latest? NSW WorkCover Prosecutions in a state of limbo
The WHS Act was passed in NSW on 1 January 2012. However, WorkCover is seeking adjournments of all safety prosecutions before the Industrial Court while it reviews whether they are affected in any way by the transition principles. If your business is currently subject to an investigation or prosecution by WorkCover you should seek legal advice about this development.
A helpful WHS guide
You may like to use our Practical Guide to the Workplace Health & Safety Act in your business. This document can be accessed 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 and Comcare Australia have requested the use of this guide.
For further information about the new safety laws, please contact our office.
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.