We can work together – sometimes

Through various media we should all be well aware of coming changes to Work Health and Safety (WHS) requirements in all states through the harmonisation of state law. It has been a bit like trying to catch a greasy ball on this issue with changes and information continuing to become available.

The transition to the new laws in all states was to take place from 1 January 2012 but it is now apparent that NSW, ACT, Queensland, South Australia and Northern Territory are the only states on target to meet this goal. Victoria, Western Australia and Tasmania are now expected to transition from 1 January 2013.

Safe Work Australia is responsible for developing model work health and safety laws. Safe Work Australia is an independent statutory body whose function is to progress the model work health and safety laws in partnership with state and territory governments, employers and workers, who are represented as Safe Work Australia Members. 

Each state will go through the process of enacting legislation based on the model laws. The intention is to have mirror laws enacted in each state.

It seems that we are entering a period of uncertainty for businesses as they try to comply, particularly those that cross borders which is nothing new to transport operators. Even assuming that it takes a couple of years for all states to transition to the new laws, the end result should be a good one with everyone Australia wide operating from the same or at least a similar rule book. Some states will have variations to the model, as an example, New South Wales has retained the unions right to prosecute but the other states have not.

As we move along the transition process some reasonable questions can be asked about how WHS and Chain of Responsibility laws interact. I don’t have the answer but it seems that the two have similar intent by defining areas of responsibility within an organisation.

The ‘Model Work Health and Safety Act’ and the ‘Model WHS Regulations dated 4 November 2011’ can be viewed on the Safe Work Australia website located at http://safeworkaustralia.gov.au/.

Even if your state is not transitioning now it would be a good idea to familiarise yourself with these documents and ensure that you do comply.

In order to assist with transition to the new laws, Safe Work Australia has released a set of transitional principles which are also available for review on the website.

Transitional Principle B provides a general delay of 12 months for new or significantly modified duties under the model WHS Regulations. This is an appropriate transitional period provided to allow duty holders to comply. However, where a duty under the model WHS Regulations is the same or very similar and has the same critical elements as a duty under pre-harmonised regulations, the WHS Regulation should apply immediately (Principle A). The differences between existing OHS regulations across jurisdictions mean each jurisdiction will need to determine this on a case by case basis.

It would be fair to say no matter which state we live in, we all must comply with the new regulations eventually so we may as well get on with it. A quick read of the information available reveals that all businesses should:
• Review your health and safety systems and compare to the new requirements;
• Ensure that you as the business owner/manager have good knowledge of how your WHS obligations are being addressed;
• Ensure that an environment of strong safety leadership exists;
• Ensure that you have processes in place for managing risk;
• Review your organisational structure to determine responsibility for health and safety (remember that you cannot delegate responsibility for WHS and employees have responsibilities in regard to their own health and safety);
• Consult with your workers, contractors and suppliers on WHS and document all consultation;
• Listen to the officers of your business as they have obligations to ensure that you as business owner/manager comply with your obligations;
• Document agreed procedures to resolve WHS issues; and,

If you already have solid WHS systems in place, it is likely that a major part of the new regulations will not amount to much change, however, if you have no systems in place and nothing documented then you are exposed to the possibility of severe fines in the event of an issue arising.

Many training organisations are jumping on the bandwagon by offering consultancy and training services, however these can be quite expensive and are not always industry specific.

Road (02 62953000), is scheduling workshops on the subject of WHS and targeted at the transport industry in 2012 so if you can find the time it may pay to attend. It will ultimately be up to you to decide what action to take but if your business is large or you are uncertain of how you are positioned to transition to the new laws then it may be beneficial to wear the cost to engage a consultant in your area to assess your systems and provide guidance. There is nothing wrong with staying abreast of current trends in `best practice’ and to do so may have positive implications when you are able to demonstrate that you are proactive and operate your business in line with current best practice.

Although we usually don’t like change, particularly when it is imposed on us by government, the removal of conflicting rights and laws across Australian states on any subject should be viewed as something positive.

Geoff Crouch


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