First category 1 charges in South Australia under harmonised WHS laws

A safety company and engineer have both been charged for category 1 offences under the Work Health and Safety Act 2011 (SA) for the death of a child at the Royal Adelaide Show in 2014.

This is the first category 1 prosecution in South Australia since the harmonised WHS laws took effect.

While details of the prosecution's charges have not been released, a category 1 offence can only be brought where the prosecution considers that a defendant engaged in 'reckless conduct'.

If convicted, the safety company could be fined up to $3,000,000, while the engineer could be fined up to $300,000 (as a worker) and jailed for up to five years.

WHS penalty in Victoria set to increase to $3,033,400

The Victorian Government has increased the maximum WHS penalty for a body corporate that recklessly endangers a person to $3,033,400, up from $1,365,030, making it higher than the fine for the equivalent offence in the harmonised jurisdictions.

Developments in 'harmonisation' of the WA WHS regime

On 1 June 2016, the Department of Commerce released the 'Work Health and Safety Regulations for Western Australia' discussion paper.

The discussion paper recommends 132 changes to the harmonised model work health and safety regulations before they are adopted in Western Australia. The recommended changes include:

  • retaining some of the current Occupational Safety and Health Regulations 1996 (WA) that are not contained in the harmonised model regulations, such as the prohibition of tobacco smoke in workplaces; and
  • the removal of some elements of the harmonised model work health and safety regulations that deal with matters that fall outside WorkSafe WA's jurisdiction (such as mining).

Submissions on the discussion paper are due by 31 August 2016. WorkSafe WA will then consider all submissions and make any 'necessary' modifications before the legislation is introduced to Parliament for consideration.

These proposed changes to the regulations are in addition to the 35 changes WorkSafe WA has proposed to the Model Work Health and Safety Bill which include deletion of workplace entry rights for WHS entry permit holders, deletion of provisions for compensation, and amendment to the powers of inspectors to seize dangerous objects.

While many of the proposed changes to the regulations would not be considered significant in isolation, the general effect of the proposed changes would be to bring the new regulations more into line with the current WA laws. This may not be welcome news for employers operating nationally – they would need to invest time in ensuring their safety management systems are consistent with a separate set of safety regulations in WA. However, many employers will welcome the attempts by Worksafe WA to remove 'unnecessary prescription'.

The WA Government has not demonstrated much of an appetite for safety law reform. Given the slow pace of the reforms over the past four years, it seems no material legislative changes are likely to be made before the next state election in March 2017.

Global changes to WHS Safety Management Systems Standard

In our March quarterly update, we let you know that the AS/NZS 4801 Occupational Health and Management Systems would be replaced by the international ISO 45001 Occupational Health and Safety Management System Standard.

Since March, Standards Australia has voted against the new draft international ISO 45001 Occupational Health and Safety Management System Standard (ISO Standard) stating that it has identified areas that needed to be addressed before it would approve the ISO Standard. Areas of concern for Standards Australia included the definition of OH&S risk and how consultation should be addressed.

Despite its current objection, Standards Australia remains supportive of this 'important international work'. It expects that the ISO Standard will be published as an international standard in late 2016 or early 2017 in the event of a subsequent affirmative vote.

In the meantime, the AS/NZS 4801 Occupational Health and Safety Management Systems remains the current standard in Australia.

Updated codes of practice for NSW and the Commonwealth

The following NSW codes of practice were updated in April 2016:

  • Managing the Risk of Falls at Workplaces 
  • Labelling of Workplace Hazardous Chemicals, and
  • Managing Noise and Preventing Hearing Loss at Work.

The technical changes made to these codes of practice are referred to at the end of each code.

23 codes of practice underpinning the Commonwealth WHS legislation were revoked and remade as separate instruments on 1 April 2016.

The Commonwealth codes of practice that were amended are:

  • Managing Noise and Preventing Hearing Loss
  • Hazardous Manual Tasks
  • Confined Spaces
  • Managing the Risk of Falls at Workplaces
  • Preparation of Safety Data Sheets for Hazardous Chemicals
  • Labelling of Workplace Hazardous Chemicals
  • How to Manage and Control Asbestos in the Workplace
  • How to Safely Remove Asbestos
  • First Aid in the Workplace
  • Construction Work
  • Preventing Falls in Housing Construction
  • Managing Electrical Risks at the Workplace
  • Managing Risks of Plant in the Workplace
  • Welding Processes
  • Excavation Work
  • Demolition Work, and
  • Spray Painting and Powder Coating.

Details of the amendments made to the codes can be found in the explanatory statement issued by Employment Minister, Michaelia Cash.

SafeWork SA to offer advisory assistance to PCBUs

From 1 July 2016, SafeWork SA will comprise of two clear operational units – a regulator and an educator, with the aim that more PCBUs will seek advice from SafeWork SA without fear of incrimination.

The advisory team will provide practical advice on maintaining or setting up effective safety systems, and won't have inspectoral powers under the Work Health and Safety Act 2011 (SA).

Amendments made to the Northern Territory WHS Regulations

The following amendments have been made to the Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT):

  • the trigger point at which construction work is deemed a construction project under the WHS Act has increased from $250,000 to $500,000 (however, this trigger won't apply to projects that commenced before 4 April 2016);
  • holders of certain authorisations (such as asbestos removal or assessor licences, plant registrations and high-risk work licences) can now change their details via telephone, email or in person; and
  • the ability for registered training organisations to issue general construction induction cards (white cards) has been repealed, leaving WorkSafe NT as the only body permitted to do so.