In brief - Not all states have adopted the model harmonised WHS
Consistency in work health and safety (WHS) laws between the
different Australian states is still a work in progress, with
Victoria and Western Australia not having adopted the model
harmonised WHS laws.
Business regards uniformity of WHS laws across Australia as an
Most national corporations would like to see consistent safety
laws implemented in the different Australian states. New South
Wales, Queensland, the Northern Territory and the ACT commenced
their model harmonised WHS laws on 1 January 2012.
Earlier this year Tasmania commenced its WHS laws and South
Australia implemented the bulk of the model WHS laws. Victoria and
Western Australia are still utilising their existing safety
Post the recent federal election, will the two remaining states
move towards implementing the model WHS laws?
WA may consider implementing model harmonised safety laws
The view of the WA government has not changed: the government
has consistently advised that there are four areas of the model WHS
laws that would not be implemented. These are:
Union right of entry
Health and safety representatives' capacity to direct the
cessation of work
One item of difference is the current "right to
silence" that exists in the Victorian OHS laws, where in a
Worksafe investigation, individuals have a right to silence if
answering a question may incriminate them. South Australia has
varied the model WHS laws to incorporate the right to silence in
its adoption of the bulk of the model WHS laws earlier this
Have the model WHS laws extended further than anticipated?
As a person conducting a business or undertaking (PCBU), how far
does your safety duty now extend?
If you are a designer, manufacturer or supplier, builder,
project manager or operate a number of mining sites, the current
WHS laws have expanded to as far as your business or undertaking
extends. The traditional workplace within the fenced area is now a
notion of the past.
The safety obligations extend to taking reasonably practicable
steps to manage your undertaking, as expressed in the High Court
decision of Baiada Poultry Pty Ltd v The Queen  HCA 14,
where, although Baiada was found not guilty of an alleged breach of
the Victorian OHS laws for a workplace incident on its
contractor's worksite, the application of the OHS laws was
within the objects of the OHS Act.
Officers of PCBUs must understand the hazards and risks of the
Officers of a PCBU must take reasonably practicable steps in the
implementation of a due diligence system that is suitable for the
business or undertaking and relevant for their role within the
An officer that understands the hazards and risks associated
with the operations of the business or undertaking and has an
effective safety management system that manages the true extent of
the business will achieve a safe and cost effective operation.
How can you achieve best practice in an effective safety
What is best practice and how do you ensure that your safety
management system is delivering best practice when the guidance
material for the minimum standard of safety (ie Codes of Practice)
is still in the consultation phase?
Safe Work Australia has recently advised that a further draft
Code of Practice for Managing Risks in Construction Work will be
released for consultation. Other key codes still to be finalised
include Bullying and Harassment and Fatigue Management.
At Colin Biggers & Paisley, we are assisting a number of
national companies to identify current best practice and assist
both the PCBU and its officers to implement safety standards to
achieve a safe and cost effective operation.
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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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