In just over one week, written submissions will close on the first holistic review of the "harmonised" Work Health and Safety (WHS) laws which have been implemented around Australia (except for WA and Vic). The WHS Review was launched on 19 February 2018 through the release of the Discussion Paper 2018 Review of the model WHS laws.

The WHS Review will be finalised by the end of 2018, and public consultation is sought on:

• which parts of the model WHS laws have and have not been working effectively, and why
• whether the model WHS laws will continue to work into the future
• what changes could be made to make the model WHS laws work more effectively.

When the model WHS laws were being developed, WHS Ministers agreed that the laws should be reviewed every five years. While the first review was initially scheduled for 2016, this was considered too premature, and was postponed until this year.

Background to the Model WHS Laws and the WHS Review

The benefits of a consistent national approach to WHS were recognised in the mid-1980s and led to the development of National Standards and National Codes of Practice for key subject areas. However, while these were helpful they did not have legal status unless adopted by specific jurisdictions, many of whom had their own Codes or Standards.

Safe Work Australia (SWA) was established in 2009 following agreement by the Workplace Relations Ministers Council, which had ministerial-level representation from the Commonwealth and all states and territories. SWA was tasked with preparing  model WHS laws for adoption as laws across Australia. SWA is a statutory agency consisting of members of the Commonwealth and each state and territory, as well as members representing the interests of workers and employers.

However, while all the parties supported national consistency in principle, states and territories were not willing to relinquish their right to put their own unique filter on any national approach: when the "model" Work Health and Safety Act eventually emerged in 2011, it still required each state and territory's parliament to pass the "model" Act and Regulations.

With some variations in timing of implementation (SA and Tasmania were a year later than the rest) and some variations in content, in 2018 only WA and Victoria are still not part of the system. The good news is that after years of flirting, WA is currently drafting a new Work Health and Safety Bill based on the model WHS Act, however Victoria has stalwartly retained its own Occupational Health and Safety legislation, despite being aligned in many ways with the model laws.

The Model WHS Regulatory Framework

Because the WHS Review will consider all aspects of the model WHS laws, it is helpful to understand the regulatory framework.

The WHS regulatory framework is composed of the:

• Model Work Health and Safety Act - this is the basis of the WHS Acts that have been passed in most jurisdictions across Australia and sets out the key safety obligations of all parties.
• Model Work Health and Safety Regulations - sets out more detailed requirements to support the duties in the model WHS Act, for example  hazardous chemicals, confined spaces, worker representation, and first aid.
• Model Codes of Practice – these provide even more detailed guides to achieving specific health, safety and welfare outcomes required under the model WHS Act and Regulations, for example Codes of Practice on First aid in the workplace, Construction work, and  How to manage work health and safety risk. The Codes are progressively developed by Safe Work Australia, signed off by the Ministers for Work Health and Safety, and once again must be approved and accepted by the state or territory before they apply in that state or territory. Codes of Practice are not legislation and compliance is not mandatory in most cases, but compliance is considered to be evidence of compliance with the WHS laws. If that sounds confusing, what it means is that there may be more than one way to comply with the legislation, not just by complying with the Code.
• The WHS regulators in each state and territory enforce the WHS laws.

The model WHS laws are supported by the National Compliance and Enforcement Policy, which most people have never heard of, which sets out principles for how state/territory WHS regulators monitor and enforce compliance with their jurisdictions’ WHS laws. This is supposed to ensure consistency of approach between, for example. SafeWork NSW and Workplace Health and Safety Queensland, in when they prosecute and the types of penalty they ask for.

The model WHS laws are only legally binding if they are implemented by each jurisdiction. This means that any amendment to the model WHS law, regulations, or Codes will not automatically apply – each jurisdiction will need to enact an equivalent legislative amendment.

Summary of the Submissions Received

SafeWork Australia has already processed a number of submissions from members of the public, from a variety of different industries and focus areas. Some of the common areas of concern are as follows:

• Many optional requirements under the model WHS laws should be made mandatory. Examples include making it mandatory for each workplace to have an Automatic External Defibrillator, and requiring Health and Safety Representatives (HSR) to undergo HSR training (as HSRs are often unaware that they have the right to request HSR training).
• The grey areas left by WHS ‘duty of care’ requirements have meant that in certain circumstances, excessive control mechanisms are being put in place. As a key example, while Safe Work Method Statements (SWMS) are only required for high-risk construction work activities, they are often requested for work of a more minor nature by SafeWork inspectors and construction companies. Various submissions have targeted the SWMS as requiring a review to increase its efficacy and to clarify its content and format requirements.
• The need for further guidance on the scope of duty holders and their relevant responsibilities, including articulating the responsibilities of managers and supervisors as distinct from ‘workers’.
• A number of WHS hazards and required obligations have been identified as gaps in the model WHS laws, such as  contractor and designer obligations in construction, and that more could be done to target inappropriate workplace behaviours such as bullying and harassment.
• Lack of consultation was identified as an issue between tradespersons and principal contractors and between employers and unions.
• Industry-specific bodies should be created to clarify how the model WHS laws are to be applied by individual industries and to provide guidance on implementation.
• Ongoing disparities in the implementation of the model WHS laws, in particular due to the absence of WA and Victoria, has caused issues for businesses which operate across jurisdictional boundaries and/or have multiple offices situated across the country. For example, only two jurisdictions (ACT and Queensland) have industrial manslaughter offences, and another two (Queensland and South Australia, with Victoria to soon follow) have introduced a labour hire licensing scheme.

Implications of the WHS Review for Schools

Written submissions to the WHS Review close on 13 April, with the Review Report to be finalised in December 2018. SWA will subsequently report to WHS Ministers in early 2019, suggesting that regulatory amendments which respond to the WHS Review may be developed in late 2019.

While this seems very far away, schools should keep an eye on developments arising out of the Review (School Governance will keep you posted). However ensuring that your school establishes a culture of awareness of safety issues and control measures is key to keeping your people safe (and avoiding prosecution).

Addendum

Relationship between Safety Legislation and Australian/International Standards

Australian (AS) and International (ISO) Standards stand apart from Australia’s harmonised WHS system. The Standards are developed by safety experts, not government representatives, and they are not passed by any parliament. The development of an International Standard is even more remote, with safety experts from around the world agreeing on a standard which will then be applicable across many different countries. An International Standard may differ from an Australian Standard, as the Australian group needs to review and adopt (or not adopt) each International Standard. Furthermore, except where required by legislation, if an organisation wishes to be acknowledged as complying with a standard they must pay to be assessed by the accredited commercial entity.

Compliance with AS/ISO Standards in most cases is completely optional, unless this is specifically required by legislation or regulation. For example, in the ACT it is a condition of registration for non-government schools to provide evidence that they have developed and implemented a Workplace Health and Safety Management System Framework. Evidence of compliance with AS/NZS 4801 Safety Management Systems is one way that a school can demonstrate that it meets this condition.

In general, while legislation sets a basic minimum of required behaviour, the Standards aim for a higher level. It is to be noted that some commercial contracts require compliance with the relevant AS or ISO standard, particularly in construction, and accreditation against a Standard is also used by some service providers or manufacturers as a competitive advantage.

All of these issues can result in there being a significant gap between the requirements in legislation and the recommended approach in an Australian or an International Standard.  A recent cause for confusion has been the newly released International Standard ISO 45001 Occupational health and safety management systems. This has not yet been adopted by Standards Australia as an Australian Standard, and there has been no revision to AS/NZS 4801 which covers similar territory.

The bottom line is that you must comply with the safety legislation, but compliance with a Standard is not required unless legislation says so.