This article provides an update on the progress towards nationalisation of OHS laws in Western Australia, South Australia, Queensland (mining), New South Wales (mining) and Victoria.
The Western Australian government has now released an Information and Issues Paper inviting submissions from workplace participants on the proposed Work Health and Safety regulations and codes of practice. The government will rely on the responses to the Issues Paper to assist it prepare a regulatory impact statement on the proposed Western Australian laws.
Submissions can be made by online survey, written submission or attending a consultation session, by Friday 12 October 2012. The Information and Issues Paper is available here and further information on the process can be found here.
The Western Australian general industry bill and regulations have been drafted (but not yet released) based on the model legislation. The bill excludes aspects of the model legislation which the government does not believe will deliver direct improvements in safety that is:
- penalty levels to the national level;
- union right of entry which are covered in the Industrial Relations Act 1979;
- health and safety representatives’’ capacity to direct cessation of work – this right will remain with the individual worker; and
- reverse onus of proof in discrimination matters.
It is also intended that Western Australia will maintain its current regulations with respect to demolition licensing and environmental tobacco smoke.
It remains the expectation that the full suite of the model codes of practice will be adopted in Western Australia.
The current position in relation to nationalisation in Western Australia is uncertain and it would appear the government could do one of three things:
- not nationalise (as is currently apparently the case in Victoria);
- implement the draft Western Australian bill unchanged; or
- implement the draft Western Australian bill with alterations based on the submissions received.
It is considered that the most likely outcome is implementation of an altered version hence, making a submission could really impact on the legislation that will be implemented.
In addition to preparing a regulatory impact statement based on the response to the Issues Paper, the Western Australian government is awaiting corresponding mining drafting instructions for the supporting regulations and the mining draft codes of practice before working towards potential implementation of both the general and mining safety laws in Western Australia.
It is intended that the general and mining versions of the Act and Regulations adopted in Western Australia will be identical in all aspects except that the mining safety law will also include provisions that relate only to the mining industry.
It is understood that the Western Australian government is still working towards a 1 January 2013 implementation deadline, but meeting this timeframe is considered to be unlikely. At this stage it is anticipated the laws will change in early 2014.
The model OHS legislation is currently before the South Australian upper house.
4 independent members of parliament are currently negotiating in relation to some aspects of the legislation so further changes may be made before the legislation is put to a final vote.
Although the Victorian government had indicated in its budget that it not would nationalise its OHS laws, Bill Shorten, Minister for Employment and Workplace Relations, has held further discussions with the government and it remains possible this position might change.
Model Codes of Practice
On 13 July 2012 twelve second stage model Codes of Practice were approved. Eight of these Codes have been released with the remaining four Codes dealing with excavation work, spray painting and powder coating, abrasive blasting and welding expected to be released shortly.
The revised Preventing and Managing Fatigue in the Workplace and Preventing and Responding to Workplace Bullying draft model Codes are also expected to be finalised in the next few months.
Mining Safety Laws
Progress is still slowing being made in respect of the nationalisation of mining safety laws. The current state of affairs is summarised below.
Queensland is part of both the core and non-core mining regulations discussions, but still sitting on the fence in relation to harmonising its mining safety laws. It has released a discussion paper on the application of the model laws in mining with the preferred option presented to maintain their existing legislative structure with some minor amendments, particularly in relation to coal mining.
New South Wales
Is working hard on both the core and non-core mining regulations with a view to implementing them as soon as possible. We comment further below on the current progress of work on the core and non-core mining regulations.
Core mining regulations
SafeWork Australia is working towards a September 2012 deadline for finalisation of the core mining regulations with implementation scheduled to be on 1 January 2013.
Non-core mining regulations
Significant development has been made on the proposed mining specific regulations. Completion by of final drafting instructions by the end of October 2012 is now considered to be a possibility. Some differences are likely to remain between the key mining states particularly in relation to drug and alcohol testing.
The likely outcome of the above process remains a consistent, but not harmonised national OHS system. There should also be some degree of consistency in the mining regulations across the jurisdictions.