There have been some further developments in the “harmonisation” of OHS laws since our last edition. One of these developments moves us closer to a nationalised system but the other development presents a potential challenge to achieving this objective.
On 1 November 2012, South Australia’s Parliament passed its harmonised Work Health and Safety Act 2012 (SA). This meant South Australia became the seventh jurisdiction to adopt the harmonised work health and safety laws, alongside New South Wales, Queensland, the Northern Territory, the Australian Capital Territory, Tasmania and the Commonwealth jurisdictions. The harmonised laws in South Australia will come into effect on 1 January 2013.
The South Australian Work Health and Safety Act is similar to the model laws, however it contains the following key amendments:
- it provides clarification that a person must eliminate or minimise risks to health and safety, so far as is reasonably practicable, “to the extent that they have the capacity to influence and control the matter”;
- it provides clarification that volunteer officers in mixed residential/commercial strata/community titles corporations will not be liable for breach of officer duties under the Act;
- it increases the number of training days for health and safety representatives to five in the first year, three in the second year and two in the third year;
- it reinstates the right to silence;
- it contains certain policies and procedures relevant to when permit holders seek to exercise their right of entry to enquire about suspected breaches of the Act;
- it requires the Small Business Commissioner to be consulted before a model Code of Practice is submitted to the minister for approval;
- it requires the SafeWork SA Advisory Council to make recommendations to the minister regarding approval of any Codes of Practice made under the Act; and
- it makes the Codes of Practice subject to disallowance by parliament.
The Queensland Government has delayed the commencement of provisions of the Work Health and Safety Regulations 2011 (QLD) until 1 January 2014, following concerns raised by a roundtable discussion held on 29 August 2012. In August, the Attorney- General and Minister for Justice met with stakeholders from 18 employer associations and unions to discuss the harmonised work health and safety laws and to consider potential changes.
The key outcomes from the roundtable review include:
- consideration of the removal of ‘contractors and subcontractors’ from the definition of ‘workers’;
- further guidance as to the meaning of ‘reasonably practicable’ and how ‘control’ is relevant in determining whether something was ‘reasonably practicable’;
- consideration to changes to the right of entry powers;
- recommendation that some of the second stage model codes of practice not be adopted in Queensland (mainly those related to construction); and
- establishment of special working groups to consider asbestos regulations and review the model codes of practice relating to bullying/harassment and fatigue.
A reminder that the Work Health & Safety Act 2012 (Tas) will commence on 1 January 2013.