With little fanfare and next to no press coverage, Australia’s plans to harmonise its WHS laws have fallen apart, with Victoria formally deciding to stick with their state based system. This is not great news for organisations operating across state boundaries, with NSW, QLD, NT and ACT having already adopted the new system and Tasmania having recently passed legislation for the new harmonised WHS laws to commence on 1 January 2013.

For those of you not up to speed with the national WHS system and what it means for employers, you might want to refer to our Executive Briefing Paper Get Ready, get set and…don’t go to jail, published in January 2012, which sets out the new requirements in plain English.

The Victorian Premier, Ted Baillieu announced on the 12th of April that Victoria would not be proceeding with the adoption of the model WHS laws, following the release of a PwC report which found that the cost of implementing the new WHS legislation would be more than $3 billion over 5 years, with the majority of the cost borne by small businesses. Mr Baillieu added that Victoria currently had the best health and safety system in Australia, and he did not want to lower standards while imposing extra costs.

The PwC report predicted that the main causes of extra costs to small business would come from the changes to the definitions of confined spaces and “fall from height” (removal of the 2 metre threshold), the change in definition of a worker, the extra due diligence requirements imposed on officers, and the requirement to establish emergency plans and test them. The only areas where they saw a positive impact from the proposed laws was in the introduction of the “consult, co-operate, and co-ordinate” requirements for PCBUs (Persons Conducting a Business or Undertaking, formerly known as the employer), the extra training required before health and safety representatives could issue notices to stop work or fix problems, and electrical safety in hostile environments.

While the Victorian decision strikes a blow against the creation of a single set of WHS laws around Australia, there is progress in other States and Territories. Here is a summary of how the national WHS system is evolving:

Up & Running…

The Commonwealth, NSW, Queensland, ACT, and NT, have all passed the new WHS laws which commenced in these jurisdictions on 1 January 2012.

NSW adopted the new legislation with very little fanfare, with a few relatively minor variations to the model legislation such as retaining some union rights of prosecution, amongst others.

The new WHS Act does not apply to mines. Queensland was an enthusiastic early adopter of the uniform laws, with extensive transitional arrangements. The change in QLD State Government is unlikely to result in a reversion to their previous system. Mining and electrical safety are not covered by the new legislation.

The ACT and NT have both implemented the new laws, and are busily embedding them into everyday practice.

The application of the WHS legislation to mining operations in the NT commenced on 1 March 2012.

And The Other Jurisdictions…

Western Australia: The Western Australian Government has drafted the WHS legislation as it applies to non-mining employers, with departures from the uniform legislation in the following areas:

  • penalty levels,
  • union rights of entry,
  • right of health and safety representatives to stop work, and
  • the reverse onus of proof in discrimination matters.

The timing of the bill into parliament, while expected in 2012, will depend on finalising the associated bill which will apply to the mining industry.

South Australia: While the uniform WHS legislation was introduced into the SA parliament in 2011, the Government did not have the numbers for it to pass in the Upper House, and the decision was adjourned until the next sitting of parliament in February 2012. The bill still has not been passed, but SafeWork SA is publishing transition fact sheets in anticipation.

Tasmania: Tasmania has passed the new legislation which is scheduled to commence on 1 January 2013.

The New Codes of Practice

Eleven of the new Codes of Practice, which flesh out the requirements in the uniform legislation and regulations, have been released by SafeWork Australia and adopted by the “uniform” States and Territories. Twelve more Codes (including First Aid and Construction) are awaiting endorsement, and five more draft Codes have been released for a 12 –week consultation period.