WHS developments in 2013

Below is a summary of major developments in the work health and safety space in 2013.

Progress on harmonisation

New Work Health and Safety (WHS) legislation in South Australia and Tasmania took effect on 1 January 2013.

This makes Victoria and Western Australia the only states that have not adopted the model Work Health and Safety Act and Regulations. While Victoria indicated in 2012 that it would not adopt the model laws, Western Australia is still claiming to be part of the harmonisation process. According to the WorkSafe WA website, Western Australia will only adopt the model laws once the model laws for mining have been finalised. However, the state has made clear that it will not adopt the model Act and Regulations in its entirety.

WHS codes and guidance material

Bullying

Safe Work Australia released the following two guides with respect to workplace bullying:

A Frequently Asked Questions section on workplace bullying has also been published on the Safe Work Australia website.

The Guide for preventing and responding to workplace bullying was initially intended as a Code of Practice. However, the idea was abandoned following extensive consultations.

Fatigue

The following guides have also been released in relation to fatigue:

These guides were also originally intended as WHS Codes of Practice.

Revised codes

The Model Code of Practice for Construction Work was revised to incorporate additional guidance for the housing construction sector.

The Model Code of Practice for Excavation Work was amended to correct a legislative reference for the requirement to prepare emergency plans, and to update information on trench support sets (timber solid sets).

The Model Code of Practice for Managing Risks of Plant in the Workplace was also revised to include updated information about second hand plant.

Draft codes

Comments on the Consultation Regulation Impact Statement on the draft model Code of Practice for Managing Risks in Stevedoring closed in November.

There are a further set of 12 draft WHS codes currently awaiting approval from the Ministerial Council and finalisation.

WHS review

Members at the final Safe Work Australia meeting in November also received the draft Terms of Reference for the 2014 Council of Australian Governments (COAG) Review of the model WHS laws. The draft Terms of Reference will be provided to the Select Council of Workplace Relations (the Select Council) following comment from Safe Work Australia members.

Additionally, Safe Work Australia is advising the Select Council on Queensland’s proposed amendments to the Work Health and Safety Act and Regulations (see below). Any major amendments to the WHS legislation have to be approved by the Select Council before they can be introduced in a participating state or territory.

Federal

The Department of Education, Employment and Workplace Relations was abolished following the election of the federal Coalition Government in September. The Department was replaced by a separate Department of Employment. Mr Eric Abetz was appointed as Employment Minister.

In a landmark decision, the High Court decided that Comcare was not liable to compensate a public sector employee for injuries she sustained while having sex on a business trip. While the injuries occurred in the motel room her employer had provided, the High Court held that the employer would have had to encourage the particular activity for liability to arise: Comcare v PVWY [2013] HCA 41. Click here for more information.

Bullying

Amendments by the Fair Work Amendment Act 2013 (Cth) expanded the Fair Work Commission’s (FWC) jurisdiction to hear complaints about workplace bullying. Effective from 1 January 2014, workers bullied at work will be able to apply to the FWC for help in resolving the matter. A worker would have been “bullied at work” if an individual or a group of individuals “repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety”. Reasonable management action carried out in a reasonable manner, however, will not constitute bullying.

The FWC will be required to deal with bullying matters within 14 days. Pursuant to the Fair Work Amendment (Anti-Bullying) Regulation 2013, the fee for making an application to the FWC regarding a bullying matter will be $65.50 (applicable until 30 June 2014).

To help employers and workers understand the scope of the FWC’s jurisdiction and the possible remedies, the FWC has released following documents:

  • draft anti-bullying Case Management Model
  • draft Anti-bullying Benchbook
  • draft amended FWC rules
  • draft forms.

Feedback on the draft documents can be emailed to futuredirection@fwc.gov.au.

Further information about the FWC’s new jurisdiction is available on the FWC website.

Queensland

Following a number of consultations aimed at reducing red tape, the Queensland Government has proposed various material changes to its Work Health and Safety Act and Regulations. The amendments relate to audiometric testing requirements as well as some asbestos-related provisions. As these will be material changes, approval must first be sought from the Select Council. In the meantime, the relevant transitional arrangements have been extended. Read more here.

Additionally, Queensland has flagged changes to right of entry provisions under the Work Health and Safety Act. The amendments would require union officials to provide at least 24 hours written notice before entering a workplace. Click here for more information.

New South Wales

The Work Health and Safety Amendment Act 2013 was enacted to correct a legal anomaly that prevented legal practitioners from initiating legal proceedings on behalf of WorkCover inspectors. It also confirmed the validity of previous prosecutions that came into doubt because of the legal technicality.

The Work Health and Safety (Mines) Act 2013 enacted in the first half of the year provides for the adoption of the model Work Health and Safety (Mines) Regulation (this remains in draft stage). It also introduces additional mining-specific provisions developed cooperatively by regulators, unions and employer associations in NSW, Queensland and WA. The Act will commence upon proclamation.

South Australia

South Australia suspended the following three model codes of practice for the state’s building industry:

  • Construction Work Code of Practice
  • Preventing Falls in Housing Construction Code of Practice
  • Safe Design of Structures Code of Practice.

This followed consultation with the building industry and the Small Business Commissioner amid concerns the cost of compliance is being passed on to home buyers.

The Work Health and Safety Act 2012 (SA) was amended in June to clarify that the privilege against self-incrimination retained in the state’s WHS legislation does not apply to corporations.

The Small Business Commissioner has also raised concerns about the ability of small business to comply with the model WHS codes. The commissioner said the codes are lengthy and complex.

Industrial Magistrate Lieschke also raised concerns in Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor [2013] SAIRC 22 about the impact of indemnity insurance on the court’s sentencing powers. In imposing a $200,000 fine on a company director who had successfully claimed insurance, Lieschke IM said such insurance policies negated the purpose of specific and general deterrence. Read more here.

Industrial Relations Minister John Rau has since vowed to resolve the issue.

Australian Capital Territory

A new Industrial Court was established pursuant to amendments by the Magistrates Court (Industrial Proceedings) Amendment Act 2013. The court has jurisdiction to hear WHS matters and Workers Compensation claims of up to $250,000. Chief Magistrate Lorraine Walker was appointed the first Industrial Court Magistrate.

New on the spot fines became applicable on 1 July 2013. Inspectors can now issue fines up to $720 for individuals and $3,600 for corporations for 10 additional offences under the territory’s Work Health and Safety legislation. Click here for further information.

WHS developments in 2013
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