Steps to harmonisation: a history and overview Rex Hoy CEO, Safe Work Australia

1. Steps to harmonisation: a history and overview Rex HoyCEO, Safe Work Australia

2. Work Health and Safety in Australia • In Australia, the Commonwealth, states and territories are responsible for regulating and enforcing work health and safety. • Although many similarities exist between the laws there are some differences that can cause difficulties. • The importance of harmonised work health and safety laws has been recognised by the Council of Australian Governments and the Productivity Commission.

3. The Inter-Governmental Agreement • The Inter-Governmental Agreement was signed in July 2008 by the Prime Minister and the Premiers/Chief Ministers of all Australian states and territories. • The IGA provides for: • the development and maintenance of model legislation, including compliance and enforcement policies, and • the establishment of a new independent national agency - Safe Work Australia - to drive reform of work health and safety and workers’ compensation • All parties are to completeimplementation of the model laws by end of 2011

4. The IGA – the reform objective • The fundamental objective of the reform covered by the IGA is to produce the optimal model for a national approach to work health and safety regulation and operation which will: • Enable the development of uniform, equitable and effective safety standards and protections for all Australian workers; • Address the compliance and regulatory burdens for employers with operations in more than one jurisdiction; • Create efficiencies for governments in the provision of work health and safety regulatory and support services; and • Achieve significant and continual reductions in the incidence of death, injury and disease in the workplace.

5. National Review into Model OHS Laws • The Federal Government established a review in 2008 to report on the optimal structure and content of a model act that is capable of being adopted by all jurisdictions. • The review was conducted by an independent advisory panel, Robin Stewart-Crompton, Barry Sherriff and Stephanie Mayman. • The main findings related to: • scope and coverage of model legislation, including definitions • workplace-based consultation, participation and representation provisions • enforcement and compliance, and • regulation-making powers and administrative processes.

6. What is model legislation? • Workplace Relations Ministers considered the review panel recommendations and agreed on the policy underpinning the model legislation. • It consisted of a model Work Health and Safety (WHS) Bill supported by model Regulations and Codes of Practice. • Workplace Relations Ministers asked Safe Work Australia to develop the model legislation. • Jurisdictions ‘mirror’ the model provisions with a new Act or amending their current work health and safety legislation • Local variation only where necessary to conform to the local legislative environment.

7. Key provisions of the model WHS Act • Duties of care are not defined by the nature of employment relationship – captures new and evolving work arrangements • Protects all types of ‘workers’ • Positive duties for officers to exercise ‘due diligence’ • Duty to consult with workers and other duty holders • Protection against discrimination and coercion • Unions have a right to enter workplaces • Significant increase in penalties

8. Duties of care

9. Duty of a person conducting a business or undertaking (PCBU)

10. Duty of officers

11. Duty of workers and others • Workers • Must take reasonable care for themselves and others • Comply with any reasonable instruction • Co-operate with any reasonable policy or procedure • Other persons at the workplace • Duty similar to workers

12. Penalties for breaches of duty of care Categories based on degree of ‘culpability’ and risk/degree of harm Corporation: $3m Individual as a PCBU or an officer: $600k / 5 years jail Individual e.g. worker: $300k / 5 years jail Category 1 Corporation: $1.5m Individual as a PCBU or an officer:$300k Individual e.g. worker:$150k Category 2 Corporation: $500k Individual as a PCBU or an officer:$100k Individual e.g. worker:$50k Category 3

13. Consultation and engagement • PCBU must, so far as reasonably practicable: • Consult with workers • Consult, co-operate with and co-ordinate activities with other persons who have a duty in relation to the same matter • Health and Safety Representatives (HSRs) for work groups • Must be established on request from a worker • Can direct unsafe work to cease and issue provisional improvement notices, but only if trained • Health and Safety Committees • Must be established within 2 months where requested by HSR, or 5 or more workers • Issue resolution procedures

14. Right to refuse unsafe work

15. Role of Unions • WHS entry permit holder can enter to inquire into suspected breaches, as well as to consult and advise workers • subject to permit and member eligibility requirements, protections and accountability • Aligned with requirements in the Fair Work Act 2009. • No notice for suspected breach • 24 hours notice to consult, advise or obtain documents

16. Compliance and Enforcement • Enforceable undertakings • Inspectors • broad powers of entry to workplaces • can issue improvement, prohibition, non-disturbance and infringement notices • assist in issue resolution • Review of decisions • Two stage process of internal review (of inspectors decisions) and external review

17. Draft model WHS Regulations – key issues • Harmonisation of existing regulations • Level of prescription • Risk Management – model laws focussed on the outcome, not the process • Australian Standards – referenced only where necessary • Interaction with other safety related legislation

18. Priority model Codes of Practice • Managing work health and safety risks • Consultation • Work environment and facilities • Asbestos – management and removal • Hazardous chemicals – safety data sheets and labelling • Hazardous manual tasks • Noise • Prevention of falls • Confined spaces • Facilities for construction sites

19. 1st stage model Codes of Practice • Construction hazards • Traffic management • Fatigue • First aid • Bullying • Safe design – plant, structures • Diving • Abrasive blasting • Forestry • Welding • Spray painting • Managing risks of hazardous chemicals

20. Milestones already met

21. Future milestones

22. Beyond 2012 • Implementation monitored by Council of Australian Governments’ (COAG) Reform Council under National Partnership Agreement to Deliver a Seamless National Economy • Proposed amendments to be decided by Ministerial Council at the national level – if agreed, then all jurisdictions must adopt the amendment • Evaluation • Review every 5 years

23. Evaluation framework • My colleague Dr Peta Miller will be presenting a poster on the evaluation framework for work health and safety in Australia. • Safe Work Australia will evaluate the effectiveness of the new model legislation as well the new National Strategy 2012 -2022 that is currently being developed.

24. Further Information Website www.safeworkaustralia.gov.au Email model.legislation@safeworkaustralia.gov.au