Australian Occupational Health and Safety (Legal) Context and Changes for Western Australia
As busy business owners and operators it is difficult to keep up with the various legislation and legislative changes that occur which are relevant to you. In this article we discuss Australian Occupational Health and Safety. We provide some context on the current OHS landscape, discuss the Western Australia Work Health and Safety Proposed Act changes and provide some information on recent workplace occupational health and safety issues and incidents.
OHS Landscape - where are we now?
A contemporary model Work Health and Safety (WHS) Bill was developed by Safe Work Australia and, following extensive public consultation across Australia, was endorsed in December 2009. Following this, model WHS Regulations and supporting model codes of practice and guidance material were published between 2010 and 2012.
One of the key WHS recommendations was to place a statutory duty on employers by having a central statement in legislation that should spell out the basic duty of an employer to provide a safe working system including safe premises, a safe working environment, safe equipment, trained and competent personnel, and adequate instruction and supervision. This duty of care became the foundation of health and safety laws in Australia.
With two exceptions, all states, both territories and the Commonwealth adopted the model WHS laws. Western Australia and Victoria have not yet adopted the model WHS laws in place of their existing Occupational Health and Safety Acts. See more information below on changes for WA.
State or Territory Work Health and Safety Legislation as at November 2018:
Victoria : Occupational Health & Safety Act 2004; Occupational Health & Safety Regulations 2007
Western Australia: Occupational Safety & Health Act 1984; Occupational Safety & Health Regulations 1996
New South Wales, Queensland, Northern Territory, South Australia and Tasmania: Workplace Health & Safety Act 2011; Workplace Health & Safety Regulations 2011
Western Australia Work Health and Safety Proposed Act Changes
The Occupational Safety and Health Act 1984 (WA) (OSH Act) is soon to be replaced by a new Work Health and Safety Act, with the Western Australian Model Work Health and Safety Bill (WHS Bill) on schedule for introduction to Parliament in mid-2019. While the OSH Act has served the Western Australian community well since its introduction, some of its key principles have become outdated in the past thirty years. In particular, the reliance on the employer/employee relationship has not kept pace with modern work practices.
A Ministerial Advisory Panel was recently formed to advise the government on the development of a single harmonised and amalgamated WHS Act. The amalgamated WHS Act will cover general industry and the resources sector in Western Australia (WA), and be aligned with the legislation in other Australian jurisdictions.
An outline of the proposed changes is provided in this presentation from the Government of Western Australia – Department of Mines, Industry Regulation and Safety: http://www.commerce.wa.gov.au/sites/default/files/atoms/files/whs_consultation_2018_-_public_seminars.pdf
As a part of the transition to the new WHS Act the term ‘employer’ has been replaced with ‘a person conducting a business or undertaking’ (PCBU). This change recognises the changing nature of business structures and activities in Australia. A PCBU goes beyond the traditional employer/employee relationship and now encompasses structures such as franchisor, labour hire company, host employer, sole trader or a government department and local authorities.
While the primary duty of care in the model WHS Bill resides with the PCBU, other duties are imposed for persons with a specified role, or in specified circumstances. Other duty holders include Officers; Workers (employees, contractors, sub-contractors); and Other persons at the workplace.
The duties of care in the model WHS Bill are: Primary duty of care; management or control of workplaces; management or control of fixtures, fittings or plant at workplaces; design plant, substances or structures; manufacture plant, substances or structures; import plant, substances or structures; supply plant, substances or structures; install, construct or commission plant or structures.
Recent Issues and Incidents
Western Australia
Penalties for breaches of Western Australia’s workplace health and safety laws increased from 3 October 2018. The new penalties are consistent with the national model Work Health and Safety Act (Model Act), with a further 14 per cent increase for inflation since 2010.
A plumber drowned after falling into a water-filled trench at a Perth western suburbs construction. WorkSafe WA is investigating.
WorkSafe WA issued a safety alert after an incident in which a large metal sliding gate fell on a worker, causing serious crush injuries.
Mine safety authorities have launched an investigation after a female worker was attacked by a pair of dingoes and suffered deep wounds to the legs at a Pilbara mine site.
Victoria
WorkSafe issued a safety alert after two workers received serious crush injuries from the uncontrolled fall of hydraulically operated loading ramps and tailgate lifters.
A worker died after falling into a trench during trenching works north of Melbourne. WorkSafe is investigating.
Australian Capital Territory
Police are pointing to a leaking gas canister in a ute as the potential cause of an explosion which killed a Canberra father in the car park of his child's school.
Queensland
Workplace Health and Safety Queensland issued an incident alert after a delivery driver sustained serious crush injuries to his hand, leg, pelvis and torso, as well as a collapsed lung when he was trapped under the wheels of his truck while delivering timber and plasterboard.
A man died in a bulldozer rollover in North Queensland. Police are liaising with Workplace Health and Safety Queensland.
New South Wales
A man died while working inside a cement water tank at a property west of Byron Bay. The man was pumping water out of the tank.
Further Information
If you would like more information Workplace Health and Safety legislation and its requirements, or on the incidents mentioned please contact our team of advisors at AB Phillips, Monday to Friday between 9:00 am and 5:00 pm AEST by phone on 1300 208 828 or email advice@abphillips.com.au.
Please note that the above information is provided as comment and should not be relied on as a substitute for detailed professional advice from AB Phillips or professional legal or financial advice on any particular matter. Where you would like additional information and support about the content in this document please contact AB Phillips.