In January 2012 we provided an update on the status of the nationalisation of OHS. At that time 5 of the 9 jurisdictions had nationalised their general laws. New South Wales had nationalised the mining safety laws, but not regulations and the Northern Territory would nationalise its mining laws, but not regulations on 1 March 2012. We now update on the progress toward nationalisation of the general laws in the remaining 4 jurisdictions and of the mining laws.
WorkSafe WA Director of Policy and Education, Ian Munns has advised that, in order to ensure the safety of companies that work between mining and non-mining sites Western Australia will not nationalise the general OHS laws and regulations until the mining OHS laws and regulations are also ready to be nationalised.
The mining regulations in Western Australia will include regulations from the core and non-core mining discussions. In this regard, mining regulations in Western Australia, New South Wales and Queensland are currently proposed to include more detail in relation to coal mining and statutory positions than is currently proposed in the other jurisdictions. Discussions about the content of the non-core regulations are continuing.
The Western Australian regulators are working towards an implementation deadline for nationalised laws in both general industry and the mining industry of 1 January 2013. A discussion paper has been prepared and will shortly be released in order to receive industry input in to the likely impact of the changes to enable the regulatory impact statement on the Act to be finalised by August 2012 and on the regulations by October 2012.
The Work Health and Safety Bill and the Mining Work Health and Safety Bill are proposed to be introduced into parliament in August 2012. Ian Munns says that Western Australia will retain two acts as it is necessary in the legislation to define who the regulator is and it is intended to keep general workplaces regulated by WorkSafe under the Department of Commerce and mines sites regulated by Resources Safety under the Department of Mines and Petroleum.
The Western Australian government’s position with respect to nationalisation of occupational health and safety laws has been that it objects to:
- union rights of access (which will remain in industrial relations legislation);
- the penalty levels (which will increase, but not the same level as in other jurisdictions);
- Health and Safety representatives having the capacity to stop work; and
- a reverse onus of proof in discrimination matters.
Ian Munns says that Western Australia will simply omit in its legislation the provisions that the government does not agree with but it will not re-number the remaining sections. This means that the provision numbers will be the same as the legislation in other jurisdictions making references to the duties across the states and territories easier.
Western Australia is also likely to remove some of the detail contained in the detailed sections of the model regulations and add additional codes of practice, for example in relation to confined space management. This will mean that the legislation likely to be enacted in Western Australia will more closely reflect a true Ruben’s model.
The Mining Work Health and Safety Regulations are likely to be almost identical to the general regulations save that some areas of no potential relevance to mining will be removed and the additional obligations from the core and non-core discussions will be inserted. It is anticipated in this regard, that the same duties will apply to mining and non-mining sites in relation to matters such as radiation, demolition and pressure vessels etc.
It is possible that the Western Australian parliament may refer the contentious issues in the legislation to a parliamentary committee for consideration. If this occurs, and as a State election will take place in Western Australia on 9 March 2013, it is anticipated that updated health and safety legislation will not be in place until at least January 2014 and possibly even as late as July 2014.
Simon Ridge, the State mining engineer, has advised that even if the nationalised laws do not get through parliament, amendments will be made to update the Western Australian mining safety legislation and will include the following key concepts proposed as part of nationalisation:
- “Person conducting a business or undertaking”
- “Site Senior Executive”;
- Training requirements to statutory positions;
- Principal Hazard Management Plans;
- Single work health and safety management systems for sites;
- Officers’ due diligence; and
- Overarching risk assessment provisions.
Simon Ridge recommends that companies consider the model laws and regulations now and start lobbying in relation to any issues they consider may negatively impact on their business or raise safety concerns. We consider that this recommendation is sound advice.
Victoria has released a regulatory impact statement assessing the likely cost to the Victorian Government of the introduction of nationalised laws as being in the vicinity of $3.44 billion over five years.
Given Victoria’s assessment of the likely costs and that many of the provisions in the nationalised laws are based on the Victorian legislation, there is a real possibility that Victoria may not introduce nationalised laws. If this is the end result we expect that there will still be some changes to Victoria’s current laws to introduce some of the nationalised concepts.
Model legislation has been introduced into the South Australian parliament. It is anticipated that this legislation will be hotly debated. This process is likely to result in some changes to the legislation being introduced in South Australia.
It is also anticipated that South Australia may update its Mines and Work Inspection Regulations 1998 to make its mining statutory positions consistent with those positions that will be included in the non-core regulations.
Model legislation has passed the Tasmanian parliament and is due to commence on 1 January 2013.
It is anticipated that Tasmania may update its mining regulations to include similar changes to the statutory positions to be included in the non-core regulations.
We understand the current position being taken by Queensland post the State election with respect to model mining laws is that they remain willing to participate in the non-core regulations discussions and will introduce model laws if they will achieve a safety improvement in that state and will not cost more.
It remains to be seen whether Queensland forms a view that the model laws will result in safety improvements and what the regulatory impact statement assesses as the likely cost of potential regulatory change.
In any event, it appears likely that amendment to the laws to insert new statutory positions will be made regardless of the position reached with respect to the introduction of nationalised mining laws.
New South Wales
New South Wales has already introduced a Work Health and Safety Act that applies to both general and mine sites. The introduction of this legislation with application to mine sites means that New South Wales is committed to introducing mining regulations based on the core and non-core discussions. It is anticipated that this will occur by 1 January 2013 subject to the finalisation of the non-core mining regulations discussions.
The Northern Territory introduced model laws and regulations for general sites on 1 January 2012 and model mining laws for mine sites on 1 March 2012.
Model mining regulations are anticipated to come into effect on 1 January 2013.
Australian Capital Territory
The Australian Capital Territory introduced model laws and regulations effective from 1 January 2012. No separate mining safety laws will be introduced.
The Commonwealth introduced model laws and regulations effective from 1 January 2012. No separate mining safety laws will be introduced.
Model Codes of Practice Ian Munns has advised that it is anticipated there will be 61 model Codes of Practice in total through the nationalisation process with about half of the codes having been developed to the public consultation stage so far. Based on public input some draft codes will be redeveloped in particular, “Preventing and Managing Fatigue in the Workplace” and “Preventing and Responding to Workplace Bullying” are currently being redeveloped with a likely further public consultation period to follow.
It appears likely that the end result of the nationalisation process will be largely consistent laws across the country, but not truly nationalised laws. Funnily, with respect to mining safety laws, consistent rather than truly nationalised laws has always been the aim of the National Mines Safety Framework which was set up in 2005 prior to the nationalisation process commencing.
Whatever the result, the changes have resulted in an increased focus on workplace safety which can only be of an ongoing benefit for all.
Changes for organisations regulated by Comcare The Workplace Relations Ministers agreed that the non-commonwealth licensees would be transferred to the state and territory jurisdiction following nationalisation and then agreed a date of 1 January 2013 for this transition to occur. Simon Ridge advises that this transfer will occur on 1 January 2013 irrespective of whether all jurisdictions have nationalised their health and safety laws by that time. The following companies are current licensees:
Click here to view table.
Both the current non-commonwealth licensees and any entities on whose sites they work should start preparing for the licensees to be compliant with the various state and territory laws and to be regulated by the various state and territory regulators now.