One month out - Harmonisation...when?

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1 December 2011 | By Janine Young (Partner)

Introduction

1 January 2012, the proposed commencement date for nationally harmonised work health and safety laws, is fast approaching. Despite Minister Evans’ recent reiteration of the Commonwealth Government’s commitment to this commencement date, one month out from the commencement date it now seems impossible that nationally harmonised work health and safety laws will, in fact, commence on 1 January 2012.  Indeed, the current position may cause some to question whether harmonisation will occur at all. 

Developments

We reported in August that at that time only two jurisdictions, New South Wales (NSW) and Queensland (Qld), had passed work health and safety bills (WHS Bills) based on the Model Work Health and Safety Bill (Model Law).  Since then, two further jurisdictions – the Commonwealth and the Australian Capital Territory (ACT) – have passed WHS Bills. Despite this, in light of other developments, a commencement date of 1 January 2012 now seems impossible to achieve.

The current state of play – jurisdiction snapshot

The current state of play is as follows:

WHS Bills introduced

  • Northern Territory (NT): The Work Health and Safety (National Uniform Legislation) Bill 2011 (NT) (NT Bill) was introduced on 27 October 2011. It is currently before the Legislative Council.
  • Tasmania: On 18 October 2011 Tasmanian Government introduced the Work Health and Safety Bill 2011 (Tas) (Tas Bill) into Parliament. The Tas Bill is currently before the upper house of the Parliament.
  • South Australia: South Australia introduced the Work Health and Safety Bill 2011 (SA) (SA Bill) on 19 May 2011.  Despite being the first jurisdiction to introduce a WHS Bill, there have been considerable delays in advancing the bill, and debate has now been deferred until February 2012. 

WHS Bills passed

  • NSW and Qld, as noted above.
  • ACT: On 20 September 2011 the ACT passed the Work Health and Safety Act 2011 (ACT) (ACT Act). In the absence of a proclamation, the ACT Act will come into force on 29 March 2012. The Bill does not significantly depart from the Model Bill.
  • Commonwealth: The Commonwealth Work Health and Safety Bill 2011(Cth) (Commonwealth Bill) was passed on 24 November 2011 without amendment and will commence on 1 January 2012.

WHS Bills not yet introduced

  • Victoria and Western Australia (WA) have not yet introduced their WHS Bills but have been urged by the Commonwealth Government to do so before 1 January 2012.

Model WHS Regulations (Model Regulations) and Codes of Practice

  • The Model Regulations were endorsed in principle by the majority of the Workplace Relations Ministers’ Council on 10 August 2011. However, the Model Regulations are still not in final form. Queensland is the only jurisdiction to have implemented WHS Regulations based on the Model Regulations.
  • Stage Two Model Codes of Practice (being the second set of draft codes of practice released to provide practical guidance on compliance with the Model Law and Model Regulations) remain open for public comment until 16 December 2011.
  • Minister Evans has confirmed that transitional arrangements will apply to the Model Regulations and a delayed commencement of up to 12 months will be provided if the new laws “result in a new or significantly different set of duties”.

WHS transitional arrangements

  • The NSW, Tasmanian, NT and Commonwealth Governments have introduced transitional legislation to facilitate the commencement of harmonised work health and safety laws in their respective jurisdictions.

Jurisdictions yet to introduced WHS Bills

Victoria

Despite pressure from the Commonwealth Government, Victoria has not yet introduced its WHS Bill nor confirmed that it will do so by 1 January 2012.

In its most recent statement, issued in September, the Victorian Government indicated that it supported the principle of harmonisation, subject to a satisfactory assessment of the regulatory impacts and benefits to the State. It appears the Government is still assessing these matters.

Given that there are only three sitting days remaining before Parliament rises for the Christmas break, it would seem almost certain that harmonised work health and safety laws will not be implemented in Victoria by 1 January 2012.

Western Australia

The WA Government is yet to introduce its WHS Bill and as today is the final Parliamentary sitting day for the year, will not do so by 1 January 2012.

The WA Government has indicated that it has had insufficient time to consider the full impact of the WHS Regulations on Western Australia. It therefore intends to delay implementation of the Model Law pending an analysis of these impacts.

Further, the WA Government has indicated that if and when it does introduce legislation, it will depart from the Model Law in a number of areas including in relation to:

  • penalties: the WA Government considers that the Model Bill’s penalties are too significant an increase in comparison to current penalties;
  • union right of entry: WA will maintain right of entry provisions in the Industrial Relations Act 1979 (WA) rather than include them in the new legislation;
  • health and safety representatives’ capacity to direct the cessation of work: the WA Government believes this decision should remain solely with the individual worker; and
  • the reverse onus of proof in discrimination matters: the WA Government regards this as contrary to the initial objectives of the harmonisation process and will not include it in its legislation.

Harmonisation ...when?

Given the extent of the reforms and the progress of the WHS Bills, many have considered the 1 January 2012 commencement date extremely optimistic. The position today, one month from commencement is:

  • only four jurisdictions have passed WHS Bills;
  • no WHS Bills have yet introduced in Victoria or WA, with their respective Parliaments rising for the Christmas break;
  • debate of the WHS Bill in SA has been delayed until February 2012;
  • the final form of the Model Regulations is yet to be released; and
  • other than Queensland, all jurisdictions are yet to introduce WHS Regulations.

In light of this, it now seems impossible that national harmonised work health and safety laws will commence on 1 January 2012. Indeed, the current position may cause some to question whether harmonisation will occur at all. Even for optimists, the question must surely now be “Harmonisation ...when?”


The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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Janine Young

Partner. Melbourne
+61 3 9672 3254

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