WORKPLACE HEALTH AND SAFETY UPDATE (AUSTRALIA)
Following South Australia's decision to pass the Work Health Safety Bill 2011, Australia is moving even closer to achieving uniform work health and safety (WHS) legislation. South Australia is now set to join Tasmania in implementing the new model legislation in January 2013, leaving Western Australia and Victoria as the only jurisdictions that have not implemented the model legislation.
The South Australian Government agreed to several amendments in order to secure the votes necessary to get the legislation through parliament.
The key amendments include changes relating to:
- Health and Safety Representative (HSR) training provisions - HSRs will be entitled to receive at least five days off per year to attend health and safety training. The current entitlement is an initial course of training of five days and one day's refresher training each year after the initial training
- Control - section 17 of the Bill (management of risks) will be amended to make it clear that duty holders are only required to eliminate or minimise health and safety risks to the extent to which they have the capacity to control the risk
- Union right of entry - entry permit holders (union officials) will be required to contact SafeWork South Australia before entering worksites to enquire into suspected safety contraventions. If a SafeWork inspector also attends the site, the entry permit holder will be required to comply with the directions of the inspector. If no inspectors are present at the site, the entry permit holder will be obligated to report any findings from the inquiry to SafeWork
- Right to silence - privilege against self-incrimination will be reinstated. Under the model legislation, a person is not excused from answering a question or providing information or a document on the ground that the answer, the information or the document may tend to incriminate the person.
Progression in Western Australia
Western Australia has completed its draft Work Health and Safety Bill but will develop separate legislation, Regulations and Codes of Practice for the mining sector.
At this stage, it appears likely that the Western Australia Bill will contain amendments relating to:
- Penalty levels - Western Australia will implement lower increases than are contained in the model legislation, stating that it does not support increases that 'could be unreasonably punitive'
- Union right of entry - provisions relating to union right of entry are contained in the Industrial Relations Act 1979 (WA) and will not be contained in the Bill to avoid duplication and inconsistencies
- HSRs' capacity to direct cessation of work - the Bill will remove the ability of HSRs to direct unsafe work to stop on the basis that workers have an individual right to stop working if they have a reasonable concern about safety
- Reverse onus of proof in discrimination matters - the model legislation includes a prohibition on discriminatory, coercive and misleading conduct that is engaged in because of a prohibited reason (ie because the person is, or proposes to be, a HSR or because they exercise a power or function as a HSR). The onus is on the party alleged to have infringed the law (eg the employer) to show that it did not act for a prohibited reason. The Bill alters the model legislation so the onus shifts back to the claimant.
In its 2012/2013 Budget, the Western Australia Government flagged its intention to introduce the Bill into Parliament before the end of the year. With the public submission period now closed with respect to an issues paper examining the likely impact of the WHS Regulations and Codes of Practice, Western Australia appears to be moving closer to implementation.
State of play in Victoria
The Victorian Government has confirmed that although it supports harmonisation in principle, it will not adopt the model WHS legislation in its current form.
The Victorian Government's position relies on the findings of a PricewaterhouseCoopers (PwC) report, commissioned by it, which claims that costs to small business would significantly increase under the model legislation. The PwC report is at odds with an assessment undertaken by the Productivity Commission, which concluded that while there would be a small increase in compliance costs for small, single-state employers, uniform legislation would actually achieve a net saving of about $370 million per year.
Regardless of which jurisdiction your business operates in, the key to achieving compliance with all WHS legislation is:
- Conducting and acting on internal audits and/or reports received from specialists
- Ensuring that WHS is adequately resourced and prioritised by the business
- Ensuring that key decision makers are familiar with the operations of the business and with the hazards and risks associated with those operations
- Ensuring that the business has appropriate processes for receiving and responding to information regarding incidents, hazards and risks. Paper systems are not enough.
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