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Current state of Australia’s OHS legislation harmonisation
By William Cowie
Why do we need harmonised WHS legislation?
Australia’s Commonwealth Constitution does not grant general powers for the Federal government to legislate on OHS nation wide. As a result, Australia has ten separate OHS statutes in place:
- · Six state based statutes
- · Two territory based statutes
- · Two Commonwealth statutes (covering Commonwealth employees, certain licensed corporations operating under the Comcare scheme, and the maritime industry)
Australian OHS statutes are all based on a mix of general duties of care, process standards and performance standards, adopted following the British Robens Report in the 1970s. Each state generally sets out procedures for hazard identification and risk identification, assessment and control.
While each set of OHS legislation may have appeared similar on the surface even prior to WHS harmonisation, there were significant differences between OHS Acts, regulations and codes of practice in each jurisdiction.
The aim of introducing harmonised OHS legislation across Australia is to have balanced and consistent OHS law in every jurisdiction. It is believed that having consistent OHS legislation in each jurisdiction will help employers, and others people conducting a business or undertaking, to better understand their legal obligations and ensure that workers’ rights are protected.
Harmonisation of OHS law does not mean OHS legislation is unchangeable, so unions will still be able to act on behalf of their members to continue to seek improvements to workers’ rights and conditions.
Development of harmonised WHS laws
The development of harmonised laws began when the Federal Government carried out two national reviews of existing OHS legislation in each state, territory and the Commonwealth jurisdiction. Their objective was to discover best practices in OHS, common practices across jurisdictions and find any areas of inconsistency. Based on those reviews, the review Panel then made recommendations to the Workplace Relations Ministerial Council about how a harmonised WHS model should be structured and what it should contain.
State, Territory and Commonwealth governments each signed the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health & Safety (the IGA) on the foot of these reviews. The agreement between governments was meant to:
- (a) Enable the development of uniform, equitable safety standards and protections for all Australian workers; Address the compliance and regulatory burdens for employers with operations in more than one jurisdiction;
- (b) Create efficiencies for governments in the provision of OHS regulatory services; and
- (c) Achieve significant and continual reductions in the incidence of death, injury, disease in the workplace
As of March 2013, seven of the ten jurisdictions with OHS laws have enacted the new, harmonised Work Health and Safety legislation. This includes the Commonwealth, New South Wales, South Australia, Queensland, Tasmania, the Australian Capital Territory and the Northern Territory.
Western Australia, although initially expected to introduce harmonised WHS legislation towards the end of 2012 or early in 2013, still has not done so. The Barnett Government has identified four key components of the model WHS legislation that it will not support: reverse onus of proof in cases of discrimination, union right of entry, penalty levels and cease work.
Victoria has announced that although they support the principle of OHS harmonisation, they will not introduce the new model WHS legislation in its current form.
Differences between the new WHS legislative framework and existing OHS laws in Australia
The move to harmonised WHS legislation means that each jurisdiction will base their laws off the same model WHS Act, as well as a model framework of WHS legislations & WHS codes of practice. Each jurisdiction is expected to adopt a consistent approach to enforcement of policy and compliance for the new WHS laws.
Despite being a ‘harmonised’ system of WHS laws, variations in WHS legislation can still exist between jurisdictions. The harmonised WHS Act, legislation and codes are only models, so each jurisdiction still has to create their own set of WHS laws based off those models. You should still check the OHS laws in the jurisdiction in which you will be operating, to ensure you are completely compliant with their requirements.
For more information about WHS Acts, Regulations and Codes of Practice, as well as a list of OHS resources for each state, check out this Work Health and Safety resource page.
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