Australia: New Work Health and Safety Legislation passed in the Australian Commonwealth

On Thursday 24 November 2011, the federal Senate passed the new Work Health and Safety Bill 2011 (Cth) (WHS Bill), marking the fourth jurisdiction to pass the harmonised work health and safety (WHS) legislation¹.The WHS Bill upon its commencement will replace the existing Occupational Health and Safety Act 1991 (Cth) (OHS Act). The WHS Bill has been passed in the Commonwealth with no amendments.

The reforms contained within the WHS Bill passed in the Commonwealth represent a significant expansion of duties and liability in relation to health and safety matters for the Commonwealth public sector² .

What are the key aspects of the reforms for the Commonwealth public sector?

Among the significant changes for the Commonwealth in the WHS Bill are the following:

• 'officer' liability for Commonwealth public servants involved in decision-making processes within their entities for the first time. This officer liability places an entirely new positive duty on public sector officers to exercise due diligence to ensure organisational compliance with the WHS legislation with breaches of the duty subject to a maximum penalty of $600,000 and/or 5 years imprisonment.
• A recasting of the primary duty holder with the central duty holder of the OHS legislation moving from the employer to a 'person conducting a business or undertaking' (PCBU). There is a corresponding expansion of the persons to whom a PCBU owes a health and safety duty, with duties owed to 'workers' rather than 'employees' as well as 'other persons'. These changes have flow on effects for public sector entities in a number of respects (for example, in consultation).
• A new duty for Commonwealth entities to consult, co-ordinate and co-operate. It ought to be noted that the Commonwealth version of the WHS Bill differs from the model WHS Bill on this issue as the Commonwealth WHS Bill contains two provisions that deal with horizontal consultation: one requiring Commonwealth duty holders to consult, co-ordinate and co-operate with other duty holders who have duties under the Commonwealth WHS legislation and a second requiring Commonwealth duty holders to consult, co-ordinate and co-operate with duty holders who have duties under the corresponding State/Territory WHS legislation.
• significant increases in penalties for the most serious breaches of the duties under the legislation with maximum penalties increasing from $242,000 to $3 million for the Crown.

Are there grace periods for the commencement of the new WHS legislation?

In recent days and weeks, there has been much discussion of transitional arrangements for moving to the new WHS legislation. 

While it seems that the laws will indeed commence on 1 January 2012 in the Commonwealth jurisdiction, the Work Health and Safety (Transitional and Consequential Provisions) Bill 2011³ provides some transitional arrangements for specific matters in moving from the existing OHS Act to the WHS Bill. There are, for example, transitional provisions for rolling over previously established workgroups, Health and Safety Representatives and Committees in relation to consultation arrangements and arrangements for the existing OHS legislation to apply for manufacturer and supplier duties where the manufacture or supply of such plant or substances have started prior to the commencement of the new WHS Act.

There is no news yet on how the Commonwealth jurisdiction will interpret Safe Work Australia's newly released guidelines on transitional arrangements for the introduction of the model Work Health and Safety Regulations. As we all know, the devil is in the detail in work health and safety and that detail is in Regulations. The final Workplace Relations Ministers' Council approved model Work Health and Safety Regulations were released on 26 September 2011: with only 3 months to go until the commencement of the WHS Act at the time of their release. This was subject of significant discussion in the Senate debate on Thursday, with the Liberal Senator for Tasmania, the Hon. Senator Abetz, Leader of the Opposition in the Senate and Opposition Shadow Minister for Employment and Workplace Relations stating: "at the moment we just have the steel frame or wire frame. What you hang on it by way of regulation is what actually counts."

What are the priority steps for compliance with the new WHS laws?

The new laws are due to commence on 1 January 2012. With the passage of the WHS Bill, the Commonwealth public sector (and self-insured licensees ⁴) can be assured that the new WHS legislation will be implemented in the Commonwealth jurisdiction.

With 37 days to go until the commencement of the new regime in the Commonwealth, there are 3 priority tasks for Commonwealth sector entities for achieving compliance with the new laws:

• Conduct a gap analysis of the safety management system for the Department, Agency or Authority to determine areas where there are compliance gaps with the new laws and develop policies and procedures where those gaps are identified.
• Identify the officers of the Department, Agency or Authority and develop a Due Diligence Framework for those officers to meet the new duty for officers to exercise due diligence.
• Review your contracts to ensure there are appropriate clauses with respect to safety in order for the organisation to meet the requirements of the horizontal consultation obligations under the new WHS legislation.

Footnotes

¹ QLD, NSW and ACT have each respectively passed versions of the model Work Health and Safety Act.

² And also self-insured licensees until self-insured licensees move to State and Territory regimes on 1 January 2013.

³ which also passed in the Senate on 24 November 2011.

⁴ until they move out of the Commonwealth jurisdiction on 1 January 2013, after which they will be subject to State and Territory based WHS legislation where they operate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.