In May 2012 we provided an update on the status of the nationalisation of OHS.  At that time we flagged that the Government of Western Australia were preparing a discussion paper seeking industry input in to the likely impact of the changes to enable the regulatory impact statement (RIS) on the proposed Western Australian legislation to be finalised. This morning Marsden Jacob Associates released an information and issues paper which can be downloaded here.

What does the issue paper confirm as to the intended amendments to WA legislation?

The Western Australian general industry bill and regulations have been drafted (but not yet released) based on the model which can be downloaded here and here. The bill does not include provisions which the government does not consider 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

The Western Australian regulations will not adopt proposed model regulations with respect to:

  • smoking (environmental tobacco smoke),

as it is intended the current Western Australian approach will be retained.

It remains the expectation that the full suite of the model codes of practice will be adopted in Western Australia.

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 laws will also include provisions that relate only to the mining industry.

What is the proposed timeframe for implementation of nationalised laws?

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.

What issues can submission be made on?

Submissions may be made on any issue contained the regulations or codes of practice, but are particularly requested on the 13 areas identified by Worksafe WA in the issues paper as being changes to the current Western Australian laws. It is not intended that submissions should be made on the proposed Western Australian Act or cover the proposed new mining specific laws (which are still under development). The areas in relation to which submissions are sought are:

  • personal protection equipment;

Alex Marden from Marsden Jacob Associates recommends that companies concentrate on those issues of significance to them rather than making submission on all matters.

Comments will be collated on terms defined in the Model Act which impact on the regulations such as workers, workplace and person conducting a business or undertaking.

Transition periods for the new obligations will be considered as part of the regulatory impact analysis.  The timing of changes is one of the issues the government is particularly aware of in relation to competencies specified for certain roles.  A couple of options that could be considered include:

  • people with 5 years practical experience and currently in the role may be accredited immediately; or
  • a requirement that set competencies must be obtained in 12 months. 

In this regard, under the harmonisation process a set of transition principles has been agreed which requires a 12 month transition period for a significant change.  Alex Marsden says that there is no reason why a longer period cannot be implemented if industry can demonstrate why longer is required.  This comment is understood to also apply to the timing of implementation of other significant changes as well.

Why making a submission could be important

WorkSafe WA has encouraged all interested parties to provide their submissions.  The current position in relation to nationalisation in Western Australia is uncertain and it would appear that the Government could do one of three things:

  • not nationalise (as is 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 of implementation is an altered version hence, making a submission could really impact on the legislation that will be implemented.

Even if nationalised legislation is not implemented it is considered almost definite that changes to implement many of the proposed improvements contained in the draft nationalised bills and regulations will be made in Western Australia so making submissions about the potential impact of changes may have a significant impact on what becomes the law in Western Australia.

How to make a submission

Public comment on the proposed Regulations and Codes of Practice is invited between now and the close of business Friday 12 October 2012.

Submissions on the issues raised in the discussion paper can be provided in a number of ways:

  • completing the online survey;
  • making a written submission; and/or
  • attending a consultation session in a regional centre or in Perth.

Further information on the public consultation process can be found by clicking here.

Half day forums will be held with individual industry groups. It is likely that the meeting for the mining industry will be held at the CME in the first week of September.

When will submissions be sought in relation to mining specific issues?

A second issues paper is anticipated when the model mining act and regulations are finalised.  At this stage, it is considered likely that final drafting instructions will be received by Western Australia Queensland and New South Wales for the parliamentary drafts people to draft state specific acts and mining regulations (ie Chapter 10 which will include all mining specific issues) by October. 

As the changes that may be proposed as a result of the current consultation process will apply to all workplaces in Western Australia including mine sites, the Director of Resources Safety, Simon Ridge, is encouraging mining companies to make submissions in response to this issues paper.