Frequently asked questions – harmonised OSH laws
Statement from the WorkSafe Western Australia Commissioner
The Western Australian Government remains committed to the principle of harmonisation and continues to take steps to progress the implementation of the model work health and safety laws. The harmonisation process has included the development of the model Act, WHS Regulations and Codes of practice. WA is continuing to participate in that process. While it is not intending to adopt the whole of the model WHS Bill, WA will likely adopt the vast majority of the proposed model laws.
Below are some answers to the questions that have been commonly asked in relation to the effect of harmonisation for workers and workplaces in WA. However, if you have other questions please contact WorkSafe WA on 1300 307 877 or by email (safety@commerce.wa.gov.au) and we will organise an answer for you.
Frequently asked questions – harmonised OSH laws
- When will the model WHS Bill and model WHS Regulations start?
- Why have model OHS laws?
- What has happened?
- What is currently happening for WA?
- Is the WA Occupational Safety and Health Act 1984 under review?
- Why isn’t WA adopting the whole of the model WHS Bill?
- What are the other States, Territories and the Commonwealth doing about the model WHS Bill and model WHS Regulations?
- What is happening about the model WHS Regulations?
- What is happening with the development of harmonised Codes of Practice?
- What will happen to existing Codes of Practice?
- What will it mean for WA workers and workplaces?
- Will WorkSafe WA continue to exist?
- Will there still be a Commission for Occupational Safety and Health in WA?
- What do I need to do?
- What will it mean for my licence (or blue card or other registration)?
- What does it mean for the mining industry in WA?
- What will be happening to dangerous goods and major hazard facilities in WA?
- What is Safe Work Australia?
When will the model WHS Bill and model WHS Regulations start?
Western Australia is one of four jurisdictions (including Victoria, Tasmania and South Australia) which will not be adopting the WHS laws from 1 January 2012.
The Commonwealth has not provided sufficient time for all Western Australian businesses to come up to speed with the new requirements. The model WHS regulations are still minus the mining component. These regulations have an important bearing on the implementation of the overall WHS laws package. The Government has concerns that having a different commencement date for mining laws will create an uncertain regulatory environment which could conceivably have a negative impact on safety standards in this high risk industry. Western Australia is of the view that implementation of the model WHS laws requires the complete package for implementation which includes all the mining regulations.
The Commonwealth Government’s Regulation Impact Statement (RIS) for the model WHS regulations is inadequate for Western Australia. As a result, a local RIS including public consultation in relation to the implementation of the model WHS regulations in WA is required. The process, which should take up to six months, has commenced. It is anticipated that the public consultation element of the process will be started around April 2012. In order to aid its decision making, this process will provide the Government with information and analysis about the consequences the model WHS regulations would have on workers, businesses, government and the economy if applied to Western Australian workplaces.
In view of these circumstances, the date of implementation for the model laws in WA has not been determined and will need to be reassessed.
Beyond the timing issue, the process for implementing model WHS laws will involve the development of some WA specific transitional laws. Some guiding principles have been agreed through the harmonisation process to deliver a consistent transition process in each jurisdiction. However, as each jurisdiction has a different set of current laws, the transitional provisions in each jurisdiction may need to cover different topics and therefore will not be identical.
Once the WA version of these transitional provisions has been finalised, WorkSafe will make more information available on how they will operate. But by way of example, the transitional provisions will deal with numerous administrative issues such as –
- Continuity of currently elected Safety and Health Representatives so as to avoid the need for unnecessary election processes.
- The rules for the continuation of existing investigations.
Why have model (harmonised) OHS laws?
Each State and Territory along with the Commonwealth (mostly Federal departments) has responsibility for the regulation of occupational health and safety in their jurisdiction and consequently each has its own laws about workplace safety. While all these different laws essentially achieve the same thing there are some differences.
For an extended period of time it has been recognised that there would be advantages if the laws in each State, Territory and the Commonwealth were more consistent. Consistent law means WA businesses that operate in other States and Territories will not have to learn different sets of rules that apply to them because they have workplaces in more than one jurisdiction. Similarly, if a worker moves between states as a result of a transfer or a change of employment then they will also not need to learn new rules.
In 2008, the Commonwealth, State and Territory governments agreed that a model Act and model Regulations would be developed which each jurisdiction would then seek to enact to deliver more consistent laws across Australia on this important topic. These model laws would be supported by model Codes of Practice which similarly would be adopted by each jurisdiction. Broad direction for this was provided by the Ministers representing the Commonwealth, States and Territories who make up a body known as the Workplace Relations Ministers Council (WRMC).
What has happened?
During 2009, work was undertaken on the development of a model Act which suited the needs of each jurisdiction in Australia. This work was undertaken by Safe Work Australia with input from each of the jurisdictions. After a period of public comment a final draft of the model Act was prepared by Safe Work Australia and on 11 December the WRMC met and endorsed that model Act (which is currently known as the Model Work Health and Safety Bill) for implementation.
On 11 December 2009, a Media Statement was released by the then Western Australian Minister for Commerce, the WA representative at WRMC.
During 2010 work was undertaken to develop the model WHS Regulations and First Stage Codes of Practice to support the operation of the model WHS Bill. These documents along with a Discussion Paper were released as a package of information for a period of public comment up to 4 April 2010.
Following receipt of the approximately 1300 public comments the contents of the model WHS Regulations and First Stage Codes of Practice were reviewed and amended according to those comments. The revised materials were then sent to the WRMC for their approval at a meeting held on 10 August 2011; the WRMC provided in principle support as outlined in their Communique The Commonwealth’s Regulation Impact Statement was not available for the meeting. Therefore, Ministers also agreed that that their decision with respect to approval of the draft model WHS Regulations and first stage codes of practice would be provided out of session upon consideration of the Regulation Impact Statement.
The Commonwealth provided only 10 days for jurisdictions to respond to the RIS. This left WA with an impossibly short period of time in which to analyse the impact on business of introducing a new set of laws, and this could have a devastating impact on our small business sector in particular. The Commonwealth did not agree with the suggestion by Western Australia’s Minister for Commerce that implementation of the laws be delayed.
On 9 November 2011, the Commonwealth Government announced that the model WHS regulation and codes of practice had been approved by majority. Further changes to the WHS regulations have since been made.
In a letter dated 16 November 2011, the Minister for Commerce advised the Commonwealth that implementation of the model WHS Laws should be undertaken as a complete package. Western Australia requires a proper assessment on the impacts of the model WHS regulations in this State. The local Regulatory Impact Statement including public consultation in relation to the implementation of the model WHS regulations in WA has commenced.
What is currently happening for WA?
Western Australia has completed drafting its Work Health and Safety (WHS) Bill for general industry. Introduction into Parliament is expected in 2012 but this will depend on progress with regard to finalising the drafting of the corresponding Bill for the mining industry. The Bill recognises the WA position on each of the jurisdictional notes contained in the model WHS Bill along with dealing with the four areas of concern that will not be included in the WA version.
Is the WA Occupational Safety and Health Act 1984 under review?
A review of WA’s Occupational Safety and Health Act 1984 is undertaken each five years.
However, at the point in time that WA adopts the model WHS Bill provisions, the current WA Occupational Safety and Health Act 1984 will no longer exist. In view of these circumstances, the five yearly review of the Occupational Safety and Health Act 1984, is not progressing at this time.
Why isn’t WA adopting the whole of the model WHS Bill?
The WA WHS Bill includes the vast majority of the provisions in the model WHS Bill. These provisions in the WA WHS Bill include those that create duties, impose responsibilities, provide the regulator with powers and effectively deliver safety at the workplaces.
However, from the beginning of the process to develop the model WHS Bill, WA has highlighted 4 areas that it did not agree with and consequently would not be adopting as law in this State. None of these matters are considered to be ones that deliver direct improvements in safety outcomes in workplaces –
- Penalty levels
- Union right of entry
- Health and safety representatives’ capacity to direct the cessation of work
- Reverse onus of proof in discrimination matters
Penalty levels
The penalty levels proposed under the model WHS Bill represented a significant increase compared to our current penalty levels. While WA supported an increase in penalties that would deliver an appropriate message concerning the importance of workplace safety and health, it could not support an increase that could be unreasonably punitive, particularly for small business operators.
Union right of entry
In Western Australia, right of entry for occupational health and safety is already provided for under the Industrial Relations Act 1979 as part of the overall right of entry rules. WA considers this is the more appropriate location for union right of entry provisions to be contained rather than in occupational health and safety laws. By maintaining right of entry laws in one location it avoids any duplication around right of entry rules; duplication could ultimately result in confusion and inconsistencies if amendments are made to either Act.
Health and safety representatives’ capacity to direct the cessation of work
The model WHS Bill contains provisions that allow a worker to refuse to work where they believe that to continue to work would expose him or her or any other person to a risk of imminent and serious injury or imminent and serious harm to his or her health. WA believes that this decision should remain with the individual worker and not be placed upon a health and safety representative.
Reverse onus of proof in discrimination matters
One of the origins of the harmonisation of occupational safety and health legislation was to achieve the removal of reverse onus of proof associated with prosecutions, which currently exists in Queensland and New South Wales. WA considers that its inclusion is contrary to one of the issues that initiated harmonisation.
What are the other States, Territories and the Commonwealth doing about the model WHS Bill and Model WHS Regulations?
Western Australia is one of four jurisdictions (including Victoria, Tasmania and South Australia) which will not be adopting the WHS laws from 1 January 2012.
The WRMC endorsed the model WHS Bill on 11 December 2009; details of this are available at the Safe Work Australia website. The intention of this endorsement was that each State and Territory along with the Commonwealth would adopt the provisions of the model WHS Bill as the law in their jurisdiction by 1 January 2012. This intention wassubject to parliamentary and other law-making processes and required that jurisdictions take all necessary steps to enact or otherwise give effect to model OHS legislation within its jurisdiction and the timeframes agreed by WRMC.
It is important to note that the final content of the model WHS Bill as adopted in each jurisdiction is determined by the parliamentary process in each State or Territory or the Commonwealth.
All jurisdictions have been involved in the development of the model WHS Regulations. A current version of the model WHS regulations approved by a majority of WRMC members is available on the Safe Work Australia website.
What is happening with the model WHS Regulations?
The Commonwealth, State and Territory regulators and national employer and employee representatives have worked closely together during the current year to develop the model WHS Regulations to support the operation of the model WHS Bill. This work has also included the development of First Stage Codes of Practice.
A local consultation in relation to the implementation of the model WHS regulations in WA is required. The process, which should take up to 6 months, has commenced. It is anticipated that the public consultation element of the process will be started around April 2012.
What is happening with the development of harmonised Codes of Practice?
Eleven First Stage Codes of Practice have been developed and were released with the model WHS Regulations. Work has now commenced on stages two, three and four Codes of Practice.
Public consultation has also been conducted by Safe Work Australia in relation to a number of other codes of practice. Details are available on Safe Work Australia’s website.
First Stage Codes of Practice
These are the Codes of Practice that were considered essential to have available at the commencement of the harmonised occupational health and safety law implementation. These have been developed with the model WHS Regulations to ensure they complemented the relevant regulations and are available on the Safe Work Australia website.
Numerous other codes will be progressively developed over time once the harmonised laws are implemented. These have been categorised as Second Stage (and later) Codes of Practice. Some of the preliminary work on these materials has already commenced.
Second and later Stage Codes of Practice
Second and later Stage Codes of Practice will form an important part of the occupational health and safety framework, however, these were not considered essential to have in place at the time the harmonised laws are implemented.
In many instances there is a significant volume of guidance material, including current codes of practice, that will continue to provide workplaces guidance on specific topics while these national codes are progressively developed.
What will happen to existing Codes of Practice?
The current WA Codes of Practice will remain relevant to Western Australian workplaces. The intention of the harmonisation process is that once there is a nationally agreed Code of Practice on a specific topic it will replace existing state codes on that topic.
WA will be a full participant in this process and in a number of instances it is possible that the existing WA code will provide the starting point, or the foundation, from which a nationally harmonised code of practice will be developed.
What will it mean for WA workers and workplaces?
In terms of a workplace’s day to day operations, there will essentially be no change. The model WHS Bill will create the same duties and responsibilities as the WA Occupational Safety and Health Act 1984 currently does.
There will be changes in terms of the section number(s) and terminology that is used As a result it will mean things such as induction material, training packages, publications, forms, etc. will need to be updated.
The model WHS Regulations similarly use different terminology and have different Regulation(s) number(s) which will also impact on induction material, training packages, publications, forms, etc. The model WHS Regulations will introduce some new requirements into WA law and remove some existing regulation content. It will be important to review your operations once the model WHS Regulations have been settled and a WA version developed.
The model laws are also likely to result in changes to the appearance and contents of some forms and notices used or issued by WorkSafe but the effect of those forms or notices will be unchanged.
It will mean that WA businesses that operate in other States and Territories will not have to learn different sets of rules that apply to them because they have workplaces in more than one jurisdiction. Similarly, if a worker moves between states as a result of a transfer or a change of employment then they will also not need to learn new rules.
Will WorkSafe WA continue to exist?
Yes.
The intention is for the model WHS Bill and model WHS Regulations to be introduced into WA as the new law for occupational health and safety applicable in this state. The WorkSafe Division of the Department of Commerce will continue to be the agency that regulates those laws by assisting those in workplaces to understand their duties and responsibilities and, where necessary, taking appropriate action to ensure compliance.
Will there still be a Commission for Occupational Safety and Health in WA?
Yes.
WA will continue to maintain the tripartite Commission for Occupation Safety and Health. The WA government considers this to be an important body and has acknowledged that it has ‘undertaken a really good job in weighing up the sometimes different points of view of employers and employees’ during the development of occupational health and safety laws in WA. The WA government considers that it will continue to have an advisory role around occupational health and safety laws in this State.
What do I need to do?
WorkSafe WA will provide updated information about this topic through updates to our website (including updating this page); email updates to Health and Safety Representatives & OSH professionals; media releases; and a variety of other processes. As more information becomes available about the content of the WA version of the model laws and their commencement dates, WorkSafe WA will provide more clarity about the things that can and need to be done in WA workplaces.
If you would like to receive the email updates, please consider subscribing to the email update service.
What will it mean for my licence (or blue card or other registration)?
The introduction of the model WHS Bill and model WHS Regulations is intended to be consistent throughout Australia. It is anticipated that there will be some changes. However, most licence holders will not need to do anything until it is time to renew their licence or registration.
Until the model WHS laws commence in WA, you will be able to renew your licence or registration based on the current rules and processes used by WorkSafe WA.
If your licence or registration is due for renewal after the model WHS laws commence, it is not anticipated that the process will vary significantly from that in operation at present. In any event WorkSafe WA will provide information through the media; its website or subscriber email service.
What does it mean for the mining industry in WA?
The mining industry in WA will continue to be regulated by the Resources Safety Division (RSD) of the Department of Mines and Petroleum. WorkSafe has been liaising closely with RSD and the intention is for the mining safety laws to adopt the model WHS Bill and Model WHS Regulations.
What will be happening to dangerous goods and major hazard facilities in WA?
It is intended that dangerous goods and major hazard facilities will continue to be regulated in WA by the Resources Safety Division (RSD) of the Department of Mines and Petroleum. WorkSafe has been liaising closely with RSD and the intention is for these laws to adopt the relevant parts of the model WHS Bill and Model WHS Regulations.
What is Safe Work Australia?
Safe Work Australia (the agency) is an Australian Government statutory agency established in 2009, with the primary responsibility of improving work health and safety and workers’ compensation arrangements across Australia.
The agency is jointly funded by the Commonwealth, state and territory governments facilitated through an intergovernmental agreement signed in July 2008. More details about Safe Work Australia are available at their home page.
Safe Work Australia (the tripartite body) is an independent body established on 1 July 2009. Its primary function is to progress national OHS laws in partnership with governments and peak employer and worker representatives
WA’s representative in the tripartite body is the Director General of the Department of Commerce.