Many will be aware that Acts and Regulations giving effect to
the Work Health and Safety Act 2011(Cth)(WHS
Act) and the National Model Work Health and Safety
Regulations 2011 (Cth) were introduced in five jurisdictions
including the Commonwealth, New South Wales, Queensland, the
Australian Capital Territory and the Northern Territory on 1
According to a statement released by the Commissioner of
WorkSafe WA, the State Government remains committed to the national
harmonisation of work, health and safety laws and continues to move
towards implementation of the model WHS Act.
The State Government has finished drafting the WA WHS
Bill (WA Bill) for general industry but that
it is not expected to be introduced into Parliament until July
2013. The progress of the WA Bill has been delayed by the
finalisation of corresponding legislation for the mining
The proposed WA Bill adopts the majority of the model WHS
Act, including provisions that create duties, impose
responsibilities, provide the regulator with power and deliver
safety in the workplace.
However, the State Government is maintaining the position taken
during the development of the model WHS Act, namely to resist
significant increases in penalty provisions, not to legislate for
union right of entry, not to legislate for health and safety
representatives' capacity to direct the cessation of work and
not to support reversal of the onus of proof in discrimination
In support of its stance, the State Government says:
Penalties under its WA Bill represent a significant increase on
current penalties imposed under the Occupational Safety and
Health Act 1981. Although the State Government is prepared to
support an increase in penalties that will emphasise the importance
of workplace safety and health, it will not support the proposed
increases as they consider they are unreasonably punitive,
particularly for small business.
As for union right of entry, the Industrial Relations Act
1978 already provides a union right of entry for occupational
health and safety and that is the more appropriate location for
such a provision. The union right of entry in the model WHS Act
would result in duplication which may ultimately lead to confusion
The ability to cease work over safety issues should remain with
the individual worker and responsibility for that should not be
placed on a health and safety representative as proposed in the
model WHS Act.
The inclusion of a reverse onus of proof in discrimination
matters (which existed in New South Wales and Queensland
legislation) is inconsistent with the harmonisation
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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