NATIONAL HARMONISATIONOF OHS LAWS

TOM KERR of Conundrum Holding reports on a presentation by BARRY SHERRIFF of Norton Rose Australia during the Safety in Action trade show, 20-22 April 2010

A commitment by the Commonwealth, state and territory governments to the harmonisation of work health and safety laws in Australia will see the introduction of a model Work Health and Safety (WHS) Act on 1st January 2012. The model act will be supported by model WHS Regulations and Codes of Practice.

State and territory jurisdictions will adopt the model legislation by either replacing their current OHS Act with a new Act or amending their current OHS Act to align with the model WHS Act.

As the model Act has been largely based on existing legislation, and in particular the current Victorian OHS Act, most currently compliant OHS systems should go a long way to satisfy the new laws.

Signifi cant changes to the current Victorian Act will be as follows:

• Emphasis on graduated enforcement but higher penalties
• Moving from employment as basis for duties, obligations & rights
• New positive duty of care for officers, with due diligence defined
• Broadened consultation obligations – vertical and horizontal
• Broadened union right of entry
• Greater protection against discrimination and coercion
• Easier modification of notices
• Increased powers of questioning and reduced rights of individuals

The main aims of the new legislation are to provide a clearer, easier to use document with less legal jargon.

The new legislation will see an increase in the maximum penalties for safety breaches, however the reforms are also aimed at driving better safety outcomes by imposing less fines and moving towards more graduated enforcements such as enforceable undertakings or compulsory spending on safety.

The terms employer/employee will no longer be used in workplace safety legislation, instead the following hierarchy shown in the table below will apply.

The aim of these definitions are to make clear that any business is responsible for the health and safety impacts of the work done for the business; the law will be about cause and effect, not legal titles.

The ‘due diligence’ duty of care for officer’s means that they must take reasonable steps to:

• Understand the nature of operations and generally the hazards and risks associated with those operations,
• Have up-to-date knowledge of OHS laws & compliance requirements,
• Have a process for receiving, considering and timely response to information on incidents, hazards and risks,
• Ensure appropriate resources and processes to enable:
  • Identification, elimination or control of OHS hazards & risks
  • Compliance with specific obligations (e.g. consultation, incident notification)
• Verify that risks and hazards are being appropriately controlled.

The model Act will also see the introduction of a requirement for horizontal consultation in addition to the current requirements for vertical consultation.

The model Act will also see the introduction of a requirement for horizontal consultation in addition to the current requirements for vertical consultation.

The idea behind this is to encourage discussion between people a all levels of business, not just a top down or bottom up approach.

The model WHS Act removes the right to silence to avoid self quesioned by an inspector; however any information given can be requested not to be presented as evidence in court in case of self-incrimination.

A lawyer should be engaged immediately in case of an incident to ensure an employer’s/worker’s full rights are known and upheld.

While the exact details of the model WHS Act are subject to review, the key principles have been agreed to. As contracts that will operate after the commencement of the new laws could be entered into now, it is important to ensure your systems will meet the requirements of the new laws.

For further information on the harmonisation of safety laws see www.safeworkaustralia.gov.au

For further information regarding the article contact Barry Sherriff from Norton Rose Australia. Phone: 03 8686 6918

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