In brief - Not all states have adopted the model harmonised WHS laws
Consistency in work health and safety (WHS) laws between the different Australian states is still a work in progress, with Victoria and Western Australia not having adopted the model harmonised WHS laws.
Business regards uniformity of WHS laws across Australia as an ideal
Most national corporations would like to see consistent safety laws implemented in the different Australian states. New South Wales, Queensland, the Northern Territory and the ACT commenced their model harmonised WHS laws on 1 January 2012.
Earlier this year Tasmania commenced its WHS laws and South Australia implemented the bulk of the model WHS laws. Victoria and Western Australia are still utilising their existing safety laws.
Post the recent federal election, will the two remaining states move towards implementing the model WHS laws?
WA may consider implementing model harmonised safety laws
The view of the WA government has not changed: the government has consistently advised that there are four areas of the model WHS laws that would not be implemented. These are:
• Penalty levels
• Union right of entry
• Health and safety representatives' capacity to direct the cessation of work
• Reverse onus of proof in discrimination matters
One key step in the harmonisation process for WA will be implementing consistent mining and non-mining safety laws to replace the current Occupational Safety and Health Act 1984 and the Mines Safety and Inspection Act 1994, which have very similar general duties.
The draft model WHS Mines Regulations and Codes of Practice for Mining that have been developed by Safe Work Australia in conjunction with the National Mine Safety Framework are still to be finalised. When this step has occurred, WA may consider implementing the model WHS laws, which will include the Mines Regulations and Mines Codes of Practice.
No change from current safety laws envisaged in Victoria
Victoria has advised that there will be no change from its current existing safety laws. It should be noted that the model WHS laws were modelled on the Victorian Occupational Health and Safety (OHS) laws.
One item of difference is the current "right to silence" that exists in the Victorian OHS laws, where in a Worksafe investigation, individuals have a right to silence if answering a question may incriminate them. South Australia has varied the model WHS laws to incorporate the right to silence in its adoption of the bulk of the model WHS laws earlier this year.
Have the model WHS laws extended further than anticipated?
As a person conducting a business or undertaking (PCBU), how far does your safety duty now extend?
If you are a designer, manufacturer or supplier, builder, project manager or operate a number of mining sites, the current WHS laws have expanded to as far as your business or undertaking extends. The traditional workplace within the fenced area is now a notion of the past.
The safety obligations extend to taking reasonably practicable steps to manage your undertaking, as expressed in the High Court decision of Baiada Poultry Pty Ltd v The Queen  HCA 14, where, although Baiada was found not guilty of an alleged breach of the Victorian OHS laws for a workplace incident on its contractor's worksite, the application of the OHS laws was within the objects of the OHS Act.
Officers of PCBUs must understand the hazards and risks of the business
Officers of a PCBU must take reasonably practicable steps in the implementation of a due diligence system that is suitable for the business or undertaking and relevant for their role within the PCBU.
An officer that understands the hazards and risks associated with the operations of the business or undertaking and has an effective safety management system that manages the true extent of the business will achieve a safe and cost effective operation.
How can you achieve best practice in an effective safety management system?
What is best practice and how do you ensure that your safety management system is delivering best practice when the guidance material for the minimum standard of safety (ie Codes of Practice) is still in the consultation phase?
Safe Work Australia has recently advised that a further draft Code of Practice for Managing Risks in Construction Work will be released for consultation. Other key codes still to be finalised include Bullying and Harassment and Fatigue Management.
At Colin Biggers & Paisley, we are assisting a number of national companies to identify current best practice and assist both the PCBU and its officers to implement safety standards to achieve a safe and cost effective operation.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.