In an effort to reduce incidences of work-related death, injury, and illness across the country, the Council of Australian Governments recently began to enact the harmonisation of work health and safety (WHS) laws, ratified in July 2008 with the signing of the Intergovernmental Agreement for Regulatory and Operational Reform in OHS. The move represents a significant departure from the former scenario in which all states, territories and the Commonwealth at large had been responsible for defining and enforcing their own health and safety laws which, although similar to one another, featured significant differences in their application and detail.

In response to industry calls for greater national consistency, currently half of the Commonwealth states and territories (with Western Australia and Victoria as the notable exceptions at the moment) have begun to implement the nationally harmonized WHS legislation, which took effect on January 1, 2012. The harmonization model calls for the Commonwealth as well as all states and territories to begin enforcing the model laws.

Some quick facts on the legislation:

Purpose of the WHS Act: In general terms, the WHS Act provides a framework to protect the health, safety, and welfare of all workers at work and all other people who might be affected by work.

• Protect the health and safety of workers and other people by eliminating or reducing workplace risks.
• Ensure effective representation, consultation and cooperation to address health and safety issues in the workplace.
• Encourage unions and employers to take a constructive role in improving health and safety practices.
• Promote information, education and training on health and safety.
• Provide effective compliance and enforcement measures.
• Deliver continuous improvement and progressively higher standards of health and safety.

Key changes in the Act: While the Act remains largely similar to its predecessor, the Queensland Workplace Health and Safety Act 1995, some substantial changes exist:

• Business operators must do what is reasonably practicable to eliminate or minimize risk to health and safety.
• Company directors will have a positive and proactive duty to exercise due diligence. This represents a significant shift away from attributed liability (i.e. Being held liable for contraventions by the company) and requires directors to:
  • Acquire and keep up-to-date knowledge of health and safety matters.
  • Gain an understanding of hazards and risks associated with the company’s operations.
  • Ensure appropriate resources are available for use to eliminate or minimize risks from work carried out.
  • Ensure appropriate processes for obtaining information about incidents, hazards and risks, and responding to them.
  • Ensure processes for complying with duties are implemented, i.e. reporting, consultation arrangements, training and instruction.
  • Verify the provision and use of resources for the matters listed above.

What does all this mean? In short, the onus is shifting directly on to the shoulders of employers, including company directors, to be familiar with the risks and hazards associated with their business operations, and to provide appropriate control measures to ensure a safe working environment.

What is the status of the Act currently? As of January 1, 2012, most states have passed the relevant legislation to enact the new WHS laws. Currently seven out of nine jurisdictions have approved the model regulations and codes of practice. However, it should be noted that both Western Australia and Victoria have, thus far, not done so. Both states have voiced some concern that information delays and a lack of clarity from the Federal Government on some of the specifics of the WHS Regulations mean that their impact on business practices cannot be accurately assessed, and consequently have not yet introduced the new legislation. Currently, there has been no formal commitment from either state regarding their involvement.

For businesses in all other states in the Commonwealth, transitional arrangements have been developed by Safe Work Australia to assist organizations to move to the new harmonised arrangements and will be in place for 12 months (or more, where the new laws result in a new or significantly different set of responsibilities).

For further information on the Act, please refer to the this guide.

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