Australia: Work Health and Safety Update

Last Updated: 9 February 2013
Article by Anna Ford

Harmonisation? Dis-harmonisation?

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 positions.

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!

Discordant harmony?

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 be seen.

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 account.

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 occurred.

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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