National Harmonisation of Work, Health & Safety Laws: Horse or Camel?

The sleek horse Safe Work Australia envisaged for the harmonised National Work Health & Safety Legislation, is in danger of emerging as a camel.

The target commencement date for nationally harmonized work, health and safety laws was 1 January 2012 but thus far only the Commonwealth, New South Wales and Queensland have legislation in place commencing on the target date.

The ACT has introduced legislation which will come into force on 29 March 2012 while Work Health and Safety legislation based on the harmonized model law has been introduced in South Australia, Tasmania and the Northern Territory Parliaments with various projected debate and/or commencement dates.

Despite being urged to do so by the Commonwealth , Victoria and Western Australia have not introduced the requisite legislation and indeed the Western Australian Government has indicated that even if it does it will depart from the model laws in a number of significant ways including penalties, union right of entry and the reverse onus of proof.

As far as New South Wales is concerned the Work Health & Safety Act 2011 came into effect on 1 January 2012 and includes the following substantial changes to the pre-existing legislation:

  • The former virtually strict liability general duty of care to ensure health and safety has been modified to a duty to ensure the same “as far as is reasonably practicable”.
  • Workers now have a positive duty to look after the safety of themselves and others while they are at work.
  • The personal liability of officers of corporations is now modified by a new duty of due diligence to ensure that a PCBU complies with the Act.
  • Prosecutors will now bear the onus of proof rather than the other way around.
  • Unions will no longer receive a moiety of the penalty from any successful prosecution.
  • New concepts and definitions have been introduced covering such things as “person conducting a business or undertaking (PCBU)” and “worker”.
  • Health and safety representatives may issue provisional improvement notices and order cessation of work in certain circumstances.
  • Category 1 and 2 offences (the more serious) will be dealt with by the Supreme Court (trial by jury) or the District Court.
  • Less serious category 3 offences will be heard in either the Local Court or the New South Wales Industrial Relations Commission.

Similar provisions will apply in the States and Territories which have adopted the Model Act.

There will now be three categories of offences, the penalties for which have been increased:

  • A Category 3 offence is any failure to comply with a health and safety duty.
  • A Category 2 offence is a failure to comply with a health and safety duty which exposes an individual to risk of death, serious injury or illness.
  • A Category 1 offence is a failure to comply with a health and safety duty which exposes an individual to a risk of death, serious injury or illness, and the offender is reckless as to that risk.

The maximum penalty for a corporation is $3,000,000 for the most serious breach with lower but still hefty maximum penalties for lesser breaches.

If your business operates across State borders in “harmonised” as well as “non-harmonised” jurisdictions you will have to comply with the “new” laws in the “harmonised” jurisdictions and the “old” laws in the non-harmonised jurisdictions.

If your business presently complies with the stringent requirements of the old legislation, more than likely it will comply with the new legislation but to minimize legal exposure all businesses must be confident that their systems are sufficient to ensure compliance with the new legislation and regulations made thereunder. Accordingly every business should now review its current safety systems to identify any exposure. Businesses operating in harmonized jurisdictions have a “transitional period” (normally 12 months but may be more) to implement the regulations if they result in new or substantially different obligations.

Your local MSI adviser is able to assist with the appropriate advice for the particular circumstances of your business.

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