The harmonisation of occupational health and safety laws was first raised by the Whitlam Government in 1974. Over the last 25 years there have been ongoing efforts to nationalise OH&sS state based requirements and obligations.

The national OH&S scheme is expected to come into operation on 1 January 2012 as a result of each state, territory and the Commonwealth committing to the harmonisation process. Seven out of nine jurisdictions have now approved the model work health and safety regulations and codes of practice and have committed to meeting the COAG deadline of 1 January 2012.   The two remaining states, Victoria and Western Australia are yet to commit.

The Model Work Health and Safety Act and Model Work Health and Safety Regulations represent a fundamental shift in the traditional regulation of OH&S in Australia. By committing to the harmonisation process, each jurisdiction will face some changes in their current OH&S arrangements. With 1 January 2012 fast approaching, now is the time to ensure that your business is abreast and ready for the OH&S changes.

The Work Health and Safety (WHS) model

The model WHS Act sets out work health and safety responsibilities. The WHS Regulations expand on the requirements of the Act, with details of how certain sections of the Act are to be implemented, and specific direction on how to meet those obligations.

The WHS Codes of Practice provide guidance on achieving the standard of health and safety that can apply to a profession, trade or industry. They provide detailed information on particular areas of an act or regulation, and outline activities, actions, technical requirements, responsibilities, and responses to events or conditions within a workplace.

Key Changes

In most cases, the national WHS Act draws on existing state OH&S requirements.  However, it also introduces some new additions or clarifications.  Some of the main changes included in the model legislation are:

• Person conducting a business or undertaking (PCBU)

An employer will become known as a ‘person conducting a business or undertaking’. A PCBU includes an employer, corporation, association, partnership, sole trader and certain volunteer organisations. For example, a volunteer organisation that employs a person to carry out work is a PCBU. But a volunteer organisation that operates with volunteers and does not employ anyone is not a PCBU.

A PCBU has the primary duty of care for workplace health and safety.

A person is not a PCBU if they are:

• Engaged solely as a worker or an officer;
• An elected member of a local authority; or
• A volunteer association where no-one is paid to carry out work for the association.

Broader definition of “worker” 

The WHS Act recognises the changing choice of work options and provides a broader definition of ‘worker’ and work environments. Certain volunteers will be included as a worker. A worker will also include labour hire staff, apprentices, work experience students, subcontractors, and contractors.

A sole trader who is a PCBU and carries out work for another business (PCBU) is a also a worker for that PCBU.

Due diligence 

The WHS Act clarifies that the officers of corporations have an obligation to exercise due diligence to ensure the company’s duty of care.  Directors and officers will have a positive duty to ensure their businesses comply with their safety obligations under new occupational, health and safety laws.

Under the new laws, officers could be personally liable for up to $600,000 in fines and/or 5 years’ imprisonment if they recklessly breach their duty and it results in, or exposes a person to, serious harm.

•  Union rights 

Unions will lose the power to prosecute for an OH&S offence (currently allowed in NSW). Unions will have the right to enter any workplace to:

•  Investigate suspected breaches of the OH&S Act or regulations;
•  Consult with and provide advice to workers on OH&S issues;
•  Consult with the person in control of a workplace on OH&S issues; and
•  Health and safety representatives will have the power to direct work to cease where they feel the work will pose an immediate threat to any person. They can also issue provisional improvement notices. These powers would be new to New South Wales and Tasmania.

OH&S consultation 

Clearer guidelines will be provided on employee consultation requirements. This includes the need to consult when:

• Identifying hazards and assessing the risks of work performed;
• Making decisions about ways to eliminate or control those risks;
• Proposing changes that may directly affect the health and safety of workers; and
• Making decisions regarding OH&S procedures.

Incident notification 

Incident notification requirements will be uniform across all states with the employer having responsibility to notify the regulator immediately when there is a fatality, serious injury, serious illness or a dangerous incident.  

• Role of inspectors and regulators 

The role of inspectors and regulators will be nationally consistent. Inspectors will be able to:

• Investigate suspected breaches of OH&S legislation;
• Issue infringement notices, improvement notices and prohibition notices; and
• Provide advice and assist in the resolution of issues at workplaces.

A regulator will be able to:

• Seek an injunction when there is an ongoing breach of a prohibition notice; and
• Compel compliance with an improvement notice after the time period has expired.

Penalties 

It is proposed that there will be four levels of penalties for breaches of the regulations, commensurate with the significance of the breach.  These levels are:

• Offences that are ‘linked’ to the WHS Act, specifically to either the general duties or the authorisations provisions, with penalties up to:
  • o $3 million for reckless endangerment by a corporation, and
  • o $1.5 million for breaches giving rise to a risk of death or serious injury.
• Stand-alone offences that are specified in the WHS Regulations as shown below:

Level	Description	Max. corporate penalties	Max individual penalties
1	Breaches of risk assessment requirements or other breaches giving rise to a risk of death or serious injury	$30,000 to $60,000	$12,000
2	Breaches of general risk control, signage and notification requirements	$18,000 to $36,000	$7,200
3	Breaches of record keeping and similar low level requirements, and breaches by workers of specific requirements	$6,000	$1,250

Provision will also be made for infringement notices to be issued with penalties set at between $1,200 and $3,600 for a corporation.

Compliance with codes of practice will not be mandatory, but they may be used in proceedings to demonstrate what was known about hazards, risks and risk controls.

The Industrial Relations Court will no longer have jurisdiction to hear safety matters. Matters will be dealt with by the Local Court (where the maximum penalty may be imposed is A$50,000) and the District Court.

Transitional Arrangements

All jurisdictions have agreed to a set of principles which will ensure that transitional arrangements are consistent across Australia, although some variations will be inevitable as each jurisdiction will be transitioning from a different work health and safety system.

Preparing for the transition 

In order to prepare for the transition to the new harmonisation laws, we suggest employers should consider their practices with respect to:

• Current OH&S practices – assess and evaluate these processes to determine WHS Act compliance and in particular the adequacy of officers’ due diligence practices.
• Current policies and procedures – consider and assess the appropriateness of your current policies and procedures (such as consultation arrangements, election of health and safety representatives, training) to ensure that these are complaint and adequate.
• Transitional preparations – Consider the possibility of your existing projects continuing past the implementation date of 1 January  2012 and whether the transitional provisions will apply to your business arrangements.
• Senior managers and directors – determine who in your organisation is an ‘officer’ (an ‘officer’ not only includes company directors, but also includes partners and the most senior operational staff, or the key persons responsible for ensuring positive health and safety practice within the organisation).
• Monitor key developments – Keep track of what is happening in jurisdictions in which you organisation operates noting that at this stage, Victoria and Western Australia are yet to commit.

As the year draws to a close, it will be important to have considered the above matters given the new year commencement date.

Author: Jo-Anne Chong

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This article is intended as a guide only and does not replace specific legal advice.