Many will be aware that Acts and Regulations giving effect to the Work Health and Safety Act 2011(Cth)(WHS Act) and the National Model Work Health and Safety Regulations 2011 (Cth) were introduced in five jurisdictions including the Commonwealth, New South Wales, Queensland, the Australian Capital Territory and the Northern Territory on 1 January 2012.
According to a statement released by the Commissioner of WorkSafe WA, the State Government remains committed to the national harmonisation of work, health and safety laws and continues to move towards implementation of the model WHS Act.
The State Government has finished drafting the WA WHS Bill (WA Bill) for general industry but that it is not expected to be introduced into Parliament until July 2013. The progress of the WA Bill has been delayed by the finalisation of corresponding legislation for the mining industry.
The proposed WA Bill adopts the majority of the model WHS Act, including provisions that create duties, impose responsibilities, provide the regulator with power and deliver safety in the workplace.
However, the State Government is maintaining the position taken during the development of the model WHS Act, namely to resist significant increases in penalty provisions, not to legislate for union right of entry, not to legislate for health and safety representatives' capacity to direct the cessation of work and not to support reversal of the onus of proof in discrimination matters.
In support of its stance, the State Government says:
- Penalties under its WA Bill represent a significant increase on current penalties imposed under the Occupational Safety and Health Act 1981. Although the State Government is prepared to support an increase in penalties that will emphasise the importance of workplace safety and health, it will not support the proposed increases as they consider they are unreasonably punitive, particularly for small business.
- As for union right of entry, the Industrial Relations Act 1978 already provides a union right of entry for occupational health and safety and that is the more appropriate location for such a provision. The union right of entry in the model WHS Act would result in duplication which may ultimately lead to confusion and inconsistencies.
- The ability to cease work over safety issues should remain with the individual worker and responsibility for that should not be placed on a health and safety representative as proposed in the model WHS Act.
- The inclusion of a reverse onus of proof in discrimination matters (which existed in New South Wales and Queensland legislation) is inconsistent with the harmonisation principles.
It is timely for employers to review the model WHS Act (http://www.comlaw.gov.au/Details/C2011A00137) in order to ensure their workplaces are well placed to comply with what appears to be an inevitable adoption.
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