In brief

  • Occupational health and safety laws are currently being harmonised across Australia.
  • Some states and territories such as New South Wales and Queensland have already introduced and passed the new Model Work Health and Safety Bill.
  • In addition, common Model Work, Health and Safety Regulations are currently being developed.
  • While the new laws reflect existing expectations regarding the management of occupational health and safety, they do raise some new duties, which employers will need to prepare for.  

Background

In Australia, occupational health & safety (OHS) obligations are currently dealt with under separate legal regimes in each state and territory in Australia. These include principal health and safety Acts, together with specific regulations and codes of practice.

Since 2009, the Australian Workplace Relations Ministerial Council has been undertaking a process of 'harmonisation' of these laws.

This includes the development of a proposed 'Model Work Health and Safety Bill'. A copy of that Bill has been developed, and general agreement has now been provided by all state and territory governments. It is proposed that this Bill will be introduced into all states and territories, with a commencement date of 1 January 2012. Some jurisdictions, such as New South Wales and Queensland have already introduced and passed these bills in their state parliaments.

This year, the states and territories have also been developing a common set of Model Work, Health and Safety Regulations. These Regulations complement and will support the model Work Health and Safety Bill, and will provide significant guidance and detail on the management of specific hazards and processes in the workplace. These Regulations are currently in the process of being finalised, and it is anticipated that a final draft will be available by mid-2011.

Many employers are now commencing a review of their existing OHS systems as against the requirements of the new laws.

Key provisions

The laws will impose some new duties, in some jurisdictions, which many employers are now taking steps to prepare for. These include:

  • The creation of a new 'positive duty' for company officers (including members of the board, and members of the executive and senior management) to exercise due diligence over health and safety matters. This new duty expressly requires the officers to take proactive and informed steps in relation to the management of health and safety issues.
  • Expanded consultation obligations. The model laws require significant emphasis be placed on the duty to engage in consultation with affected stakeholders regarding health and safety issues. This includes consultation not only with workers, but also with other organisations that may impact on the management of a particular health and safety issue. Significant emphasis is placed on effective consultation under the new legislation, and a systematic and considered approach is required from employers.
  • Increased penalties for non-compliance. Penalties of up to AUD$3 million per offence will be able to be imposed on corporations, and significant penalties and potential imprisonment can be imposed on individuals for the most serious breaches.  

Implications for employers

The new laws, in many ways, reflect existing expectations regarding the management of OHS. They impose onerous obligations on those with responsibility for the management of work and workplaces to ensure that risks to all persons affected by that work are managed, so far as is reasonably practicable.

In addition, however, the proposed model Work Health and Safety Regulations change many of the existing requirements in a number of states and territories. A detailed compliance review should be undertaken by employers, to ensure that existing health and safety procedures reflect the legislation’s requirements.