Harmonised OHS laws commence in five jurisdictions

The states and territories are in varying states of readiness for new OHS laws, with the Commonwealth, Australian Capital Territory, New South Wales, Queensland and the Northern Territory jurisdictions all having implemented harmonised OHS laws. South Australia recently voted to defer debate until early this year. The Tasmanian Legislative Council has delayed the commencement of the harmonised laws until January 2013. Victoria and Western have not yet introduced the mirror Work Health and Safety Bill to Parliament, and are unlikely to enact a harmonised Act for at least another year.

Some of the significant changes made by the laws include:

• direct obligations will be imposed on officers of bodies designed to ensure that those bodies comply with their duties
• regulation of discriminatory conduct for OHS type issues will be expanded and other obligations will be introduced prohibiting coercion and misrepresentation
• requirements for authorisations will increase, as workplaces, plant and substances, work and prescribed qualifications will have to be authorised
• there will be a new regime for the imposition of OHS duties, with the focus on the persons conducting a business or undertaking (PCBU)
• 'workers' and other individuals at workplaces will have duties, bearing in mind that 'worker' will be defined more broadly than traditional employment
• the maximum penalties that can be imposed for breaches will increase significantly. For a category one offence by a body corporate, the maximum penalty will be $3,000,000, and $600,000 or 5 years imprisonment for an individual
• the regulator's prosecution decisions will be subject to a formal system of scrutiny
• the regulator will be able to seek a host of new remedies when offences are committed, such as adverse publicity orders, restoration orders and training orders
• inspectors will have to be more cautious when exercising their powers or face the prospect of compensation orders by those whose property is damaged
• inspectors will have new powers to apply for search warrants to seize evidence of offences
• prohibition notices issued by inspectors will be able to be made orally
• where prohibition notices are not complied with (or cannot be issued) the regulator will be able to take remedial action to make workplaces safe
• inspectors will have a new notice at their disposal - a non-disturbance notice. This is to preserve sites where notifiable incidents have occurred
• injunctions will also be available to compel compliance with non-disturbance, prohibition and improvement notices
• inspectors will be able to be accompanied by others to assist them exercising their powers at a workplace
• production of documents and answering of questions at the request of inspectors will be subject to much greater regulation. Importantly, people will not be excused from producing documents or answering questions on the basis of incriminating themselves, but the answer or document will not generally be admissible against them.  

Employers should consider taking the following steps to comply with the harmonised laws:  

• training for  "officers"  and  "workers"  on new duties
• training for those involved in OHS duties as it affects them, e.g. right of entry, investigations etc
• incorporate individual OHS duties into position descriptions
• check whether definition of "worker" expands responsibilities as PCBU
• amend union right of entry policies for OHS right of entry
• ensure procedures in place for concurrent duty holders to work together
• update emergency response plans for notification of incidents
• most importantly, review OHS management systems for compliance with the new Act, codes of conduct and regulations.