SafeWork Australia (SWA) has started a review of its national workplace place safety (WHS) model laws at the five year mark of their implementation across state and territory OHS jurisdictions.
The review of the content and operation of the WHS Act and supporting regulations will involve extensive consultation with regulators, employers and worker representatives and other interested parties throughout 2018. It will result in a report at the end of the year on what changes might be necessary to help make Australian workplaces safer and healthier.
The review is being conducted for SWA by prominent South Australian lawyer and jurist and workplace relations consultant Marie Boland. Ms Boland is a former executive director of SafeWork SA. She played a leading role in implementing the model laws in South Australia.
The review by Ms Boland aims to find out if the model laws are working in practice.
Starting in 2012, the model laws were to be implemented progressively by all jurisdictions following a commitment to the former Gillard Federal Government by premiers and chief ministers at a Council of Australian Governments summit. This followed an agreement by the then Workplace Relations Ministers Council in 2008 to have the work on harmonising Australia’s disparate local OHS laws led by the Federal Government’s OHS policy body, SWA. It brought an end to discussions about this topic as a national priority that began in the 1990s. One of the reasons for uniformity was national employers found it confusing and costly to follow different laws in each state over the same hazards and risks.
All governments have implemented WHS laws except for Victoria and Western Australia.
The national package was based on Victoria’s Occupational Health and Safety Act 2004 that was the “newest” OHS law at the time. Victoria decided that harmonising its laws at this time would be costly and do little to improve the state’s OHS performance. However its revised OHS Regulations that came into operation in mid-2017 did include harmonisation with specific provisions of the national regulation where there were benefits for Victorian workplaces.
Following a recent change in government, Western Australia is closer to full harmonisation after incorporating a large number of national provisions in its proposed Work Health and Safety Bill Act 2014.
The independent national review of the model Work Health and Safety Act 2011 and its regulations by Ms Boland will be evidence-based. It will propose actions for regional workplace safety bodies to improve the model they have already enacted or identify areas that will require further assessment and analysis by SWA.
Specifically the review will examine whether the laws are operating as intended and if there have been any unintended consequences. The review will consider what matters are new nationally and remain significantly different between jurisdictions, including the compliance and enforcement framework and the critical duties of consultation, representation and issue resolution.
While the harmonised laws were generally seen as a positive move for Australian workplaces, the changes were not revolutionary. Being based on a Victorian template meant they were applicable and easily adopted from 2011 onwards.
The major change was the use of modern legal definitions for duty holders. “Worker” replaced “employee” and “person conducting a business or undertaking” (PCBU) replaced the limiting definition of “employer”.
Under WHS law “worker” means any person who works as an employee, contractor, subcontractor, self-employed person, outworker, apprentice or trainee, work experience student, employee of a labour hire company placed with a ‘host employer’ or volunteer. PCBU is a cumbersome legal entity that has become necessary to cover all types of business arrangements including companies, unincorporated bodies, associations, partnerships and the self-employed, all of whom have the same duty under WHS law whether they directly employee people or not.
It is not known what would have happened if there had been no change in safety laws over the last five years. The statistics show that death, injury, illness and disease at work have continue to reduce nationally over the last couple of years. But the rate of reduction has been slow.
It is also not known what impact there has been on workplace safety management by changes in work environments and work practices resulting from the rapid and accelerating shift to part-time work, casual work, contracting and work intensification across Australia’s working landscape.
These and other matters relevant to employers and workers can be raised during the public consultation sessions SWA will be conducting around the nation throughout this year.