Twelve months into our 'sort-of-harmonised' national WHS
system things are, in many ways, settling down without having the
dire consequences predicted in some quarters. However, things are
not all neat and tidy just yet!
Who's in and who's out?
As things stand, QLD, NSW and the Territories have the system in
place, and Tasmania and South Australia will join from 2013.
Victoria and Western Australia are still considering their
Life as we know it continues
There has been much debate as to whether compliance with the
harmonised legislation is a big deal, or whether WHS life will
continue as we know it with a few variations.
The general view now is that, for businesses that were
substantially compliant prior to harmonisation, the changes are
relatively small. The loudest cries of angst are coming from
businesses that were probably not compliant before and have
suddenly realised the size of their compliance gap. In actual fact,
it is the same sized compliance gap as before the new legislation,
but the publicity about harmonisation is making it top of mind!
One of the areas of confusion predicted in relation to the
harmonised system, since it depends on adoption of the model by
individual state governments, is the temptation for a state
government to 'fiddle' with the legislation, thereby
derogating (or deviating) from national uniformity.
What was predicted seems to be coming to pass: the new state
government in Queensland is considering amending the legislation to
remove contractors and sub-contractors from the definition of
"worker", to alter union right of entry provisions, and
to decline to adopt a number of the model codes of practice.
Whether this will happen, or is more a matter of demonstrating
political difference from the preceding state government remains to
However, whatever the merits of any particular point, changes of
this nature will substantially frustrate the goal of having the
same rules applying everywhere, so that businesses operating beyond
the bounds of one state don't need to take different rules into
WHS Codes of Practice
One particular confusion is about the status of the Codes of
Practice being released progressively by Safe Work Australia (see
link below) and whether these are mandatory, or simply guidelines.
They are in fact guidelines as to what may be
"reasonably practicable" - but if they are not
"reasonably practicable" in particular
circumstances, then failure to follow the code would not, of
itself, be an infringement of the legislation.
On the other hand, the codes of practice provide lots of useful
guidance on what businesses may consider doing in their own efforts
to provide a safe workplace. Many of the detailed guidelines will
not be practicable in small businesses, or inapplicable where they
are not relevant to a business' areas of work. However, it is
definitely good practice to be aware of Codes, implement them where
applicable, and otherwise consider alternative ways of managing
risks if the Codes' guidelines are not the most appropriate or
practicable way to go about it for your business. The Codes are
actually there to help as a guide to best practice, without each
business having to reinvent the wheel for itself.
Bullying Code of Practice
The most controversial code has been the draft Code concerning
bullying, which, when released in 2011, was the subject of furious
disagreement and was withdrawn for redrafting. It has not yet
re-appeared. Areas of controversy included whether bullying
involves repeated unreasonable behaviour, or whether it could be
constituted by one incident, and also whether the examples of
conduct which could constitute bullying were legitimate (eg both
giving someone too much work, or not enough work).
It remains to be seen how Safe Work Australia will deal with
these issues, but in a colourful example recently proposed by the
Opposition IR spokesman Senator Abetz, "eye-rolling
responses" might diminish a person's dignity and
therefore constitute bullying, but at least if repeated conduct is
required, one example of eye-rolling would not be bullying! The
difficulty that this demonstrates is, of course, that bullying is
notoriously hard to define and whether particular conduct is
bullying or not depends very much on particular circumstances.
The issue of concern to employers should be that a very broad
definition of bullying could potentially result in allegations of
bullying based on a selective use of the Code, when in fact overall
circumstances would not support a conclusion that bullying
We will keep you updated on this issue and advise when the
revised draft Code on bullying is released.
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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