Steps to harmonisation: a history and overview

Rex HoyCEO, Safe Work Australia

Work Health and Safety in Australia

• In Australia, the Commonwealth, states and territories are responsible for regulating and enforcing work health and safety.

• Although many similarities exist between the laws there are some differences that can cause difficulties.

• The importance of harmonised work health and safety laws has been recognised by the Council of Australian Governments and the Productivity Commission.

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The Inter-Governmental Agreement

• The Inter-Governmental Agreement was signed in July 2008 by the Prime Minister and the Premiers/Chief Ministers of all Australian states and territories.

• The IGA provides for: • the development and maintenance of model

legislation, including compliance and enforcement policies, and

• the establishment of a new independent national agency - Safe Work Australia - to drive reform of work health and safety and workers’ compensation

• All parties are to complete implementation of the model laws by end of 2011

The IGA – the reform objective

• The fundamental objective of the reform covered by the IGA is to produce the optimal model for a national approach to work health and safety regulation and operation which will:

– Enable the development of uniform, equitable and effective safety standards and protections for all Australian workers;

– Address the compliance and regulatory burdens for employers with operations in more than one jurisdiction;

– Create efficiencies for governments in the provision of work health and safety regulatory and support services; and

– Achieve significant and continual reductions in the incidence of death, injury and disease in the workplace.

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National Review into Model OHS Laws

• The Federal Government established a review in 2008 to report on the optimal structure and content of a model act that is capable of being adopted by all jurisdictions.

• The review was conducted by an independent advisory panel,

Robin Stewart-Crompton, Barry Sherriff and Stephanie Mayman.• The main findings related to:

– scope and coverage of model legislation, including definitions – workplace-based consultation, participation and representation

provisions – enforcement and compliance, and– regulation-making powers and administrative processes.

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What is model legislation?

• Workplace Relations Ministers considered the review panel recommendations and agreed on the policy underpinning the model legislation.

• It consisted of a model Work Health and Safety (WHS) Bill supported by model Regulations and Codes of Practice.

• Workplace Relations Ministers asked Safe Work Australia to develop the model legislation.

• Jurisdictions ‘mirror’ the model provisions with a new Act or amending their current work health and safety legislation

• Local variation only where necessary to conform to the local legislative environment.

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Key provisions of the model WHS Act

• Duties of care are not defined by the nature of employment relationship – captures new and evolving work arrangements

• Protects all types of ‘workers’• Positive duties for officers to exercise ‘due diligence’• Duty to consult with workers and other duty holders • Protection against discrimination and coercion• Unions have a right to enter workplaces • Significant increase in penalties

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Duties of care

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Duty of a person conducting a business or undertaking (PCBU)

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Duty of officers

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Duty of workers and others• Workers

– Must take reasonable care for themselves and others

– Comply with any reasonable instruction

– Co-operate with any reasonable policy or procedure

• Other persons at the workplace – Duty similar to workers

Who is a worker?

A person who carries out work for a person conducting a business or undertaking in any capacity, including as:• Employee• Contractor or subcontractor• Employee of a contractor or subcontractor• Employee of labour hire company• Outworker• Apprentice or trainee• Student on work experience• Volunteer

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Penalties for breaches of duty of care

Categories based on degree of ‘culpability’ and risk/degree of harm

Category 1

Category 2

Category 3

Corporation: $3m

Individual as a PCBU or an officer: $600k / 5 years jail

Individual e.g. worker: $300k / 5 years jail

Corporation: $1.5m

Individual as a PCBU or an officer: $300k

Individual e.g. worker: $150k

Corporation: $500k

Individual as a PCBU or an officer: $100k

Individual e.g. worker: $50k

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Consultation and engagement• PCBU must, so far as reasonably practicable:

– Consult with workers– Consult, co-operate with and co-ordinate activities with other

persons who have a duty in relation to the same matter

• Health and Safety Representatives (HSRs) for work groups– Must be established on request from a worker– Can direct unsafe work to cease and issue provisional

improvement notices, but only if trained

• Health and Safety Committees– Must be established within 2 months where requested by HSR,

or 5 or more workers

• Issue resolution procedures

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Right to refuse unsafe work

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Role of Unions

• WHS entry permit holder can enter to inquire into suspected breaches, as well as to consult and advise workers– subject to permit and member eligibility requirements,

protections and accountability• Aligned with requirements in the Fair Work Act 2009. • No notice for suspected breach• 24 hours notice to consult, advise or obtain documents

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Compliance and Enforcement

• Enforceable undertakings

• Inspectors – broad powers of entry to workplaces– can issue improvement, prohibition, non-disturbance

and infringement notices

– assist in issue resolution

• Review of decisions

– Two stage process of internal review (of inspectors decisions) and external review

Draft model WHS Regulations – key issues

• Harmonisation of existing regulations• Level of prescription• Risk Management – model laws focussed on the

outcome, not the process• Australian Standards – referenced only where

necessary• Interaction with other safety related legislation

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Priority model Codes of Practice• Managing work health and safety risks • Consultation• Work environment and facilities• Asbestos – management and removal • Hazardous chemicals – safety data sheets and labelling • Hazardous manual tasks• Noise• Prevention of falls• Confined spaces• Facilities for construction sites

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1st stage model Codes of Practice• Construction hazards• Traffic management• Fatigue• First aid• Bullying • Safe design – plant, structures• Diving • Abrasive blasting• Forestry• Welding• Spray painting • Managing risks of hazardous chemicals

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Milestones already metDate Milestone

3 July 2008 IGA signed by the Prime Minister and all Premiers and Chief Ministers

18 September 2009

Safe Work Australia Act enacted

1 November 2009 Safe Work Australia established

11 December 2009

Model Work Health and Safety Act endorsed by the Ministerial Council

10 August 2011 Ministerial Council approval of:•Model WHS Regulations; •Priority model codes; and•Compliance and enforcement policy

Future milestones

Date Milestone

Throughout 2011 State, territory and Commonwealth governments introducing and passing the model legislation

January 2012 Implementation of model legislation

Post January 2012 Further development of model codes and guidance material.

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Beyond 2012

• Implementation monitored by Council of Australian Governments’ (COAG) Reform Council under National Partnership Agreement to Deliver a Seamless National Economy

• Proposed amendments to be decided by Ministerial Council at the national level – if agreed, then all jurisdictions must adopt the amendment

• Evaluation• Review every 5 years

Evaluation framework

• My colleague Dr Peta Miller will be presenting a poster on the evaluation framework for work health and safety in Australia.

• Safe Work Australia will evaluate the effectiveness of the new model legislation as well the new National Strategy 2012 -2022 that is currently being developed.

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Further Information

Website www.safeworkaustralia.gov.au

Email model.legislation@safeworkaustralia.gov.au