In the second half of 2011, in keeping with the ACT’s commitment to the national harmonisation of health and safety laws, the Legislative Assembly passed a new Work Health and Safety Act 2011. The new Act replaces the previous Work Safety Act 2008 on 1 January 2012. The Work Safety Act 2008 therefore ceases to have effect from midnight on 31 December 2011.
As with the Work Safety Act 2008, the new legislative regime comprises 3 formal elements with a fourth, non-legislative element sitting below that. These are:
- the principal Act, the Work Health and Safety Act 2011, which takes effect from 1 January 2012
- the Regulations that sit below the principal Act, namely the Work Health and Safety Regulation 2011
- Codes of Practice
- National and Australian Standards
- Guidance Material.
The Act sets out the overall framework for work safety and a range of duties designed to ensure work health and safety.
The Regulation spells out minimum standards for the duty holders to ensure work safety in relation to specific hazards and risks (such as the performance of manual tasks). Regulations have the force of law and MUST be adhered to. Failure to comply may result in a criminal penalty or an infringement notice.
Codes of Practice provide practical guidance on how to comply with legal duties. Codes have formal status, allowing courts to consider whether a Code has been complied with in deciding whether legal duties have been met. The steps set out in a Code are not compulsory, but you should follow the Code or an equivalent [or better] alternative.
National Standards and National Codes of Practice are developed by Safe Work Australia and its predecessors (NOHSC, ASCC). Once adopted in each jurisdiction, they are then legally enforceable. Australian Standards are separate technical guides which may also assist a person to comply with a particular work safety duty.
The Work Health and Safety Act 2011 has brought health and safety laws in the ACT into harmony with similar legislation adopted by most of the other Australian states and territories. This harmonisation process has significantly narrowed the differences in work health and safety legislation across borders within Australia.
Key features of the new legislation include:
- continuation of the definition of ‘worker’ under the previous Work Safety Act 2008 as including more than just employees, e.g. contractors, volunteers, etc.
- continuation of the emphasis in the previous Work Safety Act 2008 on those who engage workers in the conduct of a business or undertaking [a ‘person in control of a business or undertaking, or PCBU, noting that ‘person’ in this context can include a whole business or government agency] as the primary safety duty holder
- continuation of the inclusion in the Work Safety Act 2008 of upstream and other similar duty holders amongst PCBUs
- a duty for a PCBU to, as far as is reasonably practicable, provide a safe workplace and a safe systems of work
- where a PCBU has a safety duty, an ‘officer’ [e.g. a director or senior manager] within the business has a ‘due diligence’ requirement to take steps to assist the PCBU in meeting its obligations
- the primary means of providing a safe working environment is through eliminating or, if elimnination is not possible, minimising risk
- employers must consult with workers to allow them to contribute directly to the management of risk and creation of a safe working environment.
The new legislation also introduces some new terminology, including:
- ‘work safety’ becomes ‘work health and safety’ or WHS
- ‘worker consultation units’ become ‘work groups’
- ‘work safety representatives’ and ‘work safety committees’ become ‘health and safety representatives’ and ‘health and safety committees’
- ‘authorised representatives’ become ‘WHS entry permit-holders’.
Part 20 of the Work Health and Safety Act 2011 contains a number of transitional provisions which will ease the move from the Work Safety Act 2008 to the new Act.
In particular, the Act provides that:
- existing ‘worker consultation units’ automatically become ‘work groups’
- existing ‘work safety representatives’ become ‘health and safety representatives’
- existing ‘work safety committees’ become ‘health and safety committees’
- existing ‘authorised representatives’ become ‘WHS entry permit-holders’.
This means that there is no need for businesses to hold new elections, for example, for HSRs or to reorganise their consultative arrangements as a result of the new legislation coming into effect.
Section 2 of the Work Health and Safety Regulation 2011 also provides for transitional arrangements including:
- Division 4.7.4 [electrical work on energised electrical equipment] commences 1 July 2012
- Sections 168-170 [certificate of fitness for diving work] commence 1 July 2012
- Section 53 [storage of flammable or combustible substances] commences 1 January 2013
- Sections 164 and 165 [residual current devices] commences 1 January 2013
- Sections 171-175 [competence of workers for diving work] commences 1 January 2013
- Divisions 4.8.3 and 4.8.4 [diving work] commences 1 January 2013
- Divisions 5.2.2 and 5.2.3 [design of plant] commences 1 January 2013
- Section 235 [inspection of mobile and tower cranes] commences 1 January 2013
- Part 5.3 [registration of plant designs and items of plant] commences 1 January 2013
- Sections 309-311 [WHS management plan for construction work] commences 1 January 2013
- Section 313 [WHS management plan for construction work] commences 1 January 2013
- Schedule 3 [high risk work], table 3.1, Item 23 commences 1 July 2013
- Schedule 4 [high risk work], Table 4.1, Item 23 commences 1 July 2013.