The Commonwealth does not have the constitutional authority to enact legislation regarding work health and safety (formerly referred to as “occupational health and safety”). Therefore, attempts at harmonisation of such legislation have required the agreement of all Australian States. In 2008, the Council of Australian Governments (COAG) signed the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. A National Review Panel was established to address Model Occupational Health and Safety Laws. The National Review Panel made 232 recommendations, outlined in two reports to the Workplace Relations Ministers’ Council. The Model Work Health and Safety Act was drafted by the Australasian Parliamentary Counsel’s Committee (PCC) on instructions from Safe Work Australia. Safe Work Australia published a final version of the Model Work Health and Safety Act in 2010 and a revised version in 2011.
The Model Work Health and Safety Act formed the basis of the harmonised work health and safety legislation adopted by the Commonwealth, the Australian Capital Territory, the Northern Territory, New South Wales, Queensland, South Australia and Tasmania. However, there are variations to the legislation enacted in each jurisdiction. The key concepts of the Work Health and Safety Act 2011 (Cth) and the principles applicable to work health and safety duties are discussed in the revised and renamed The Laws of Australia Subtitle 26.8 “Occupational and Work Health and Safety”. The title reflects the jurisdictional differences in legislation and terminology, especially for Victoria and Western Australia which have retained the previous occupational health and safety legislation.
One of the key changes in obligations is that the responsibility for work health and safety conditions now falls on a Person Conducting a Business or Undertaking (PCBU) instead of an “employer” as under previous occupational health and safety legislation. A PCBU’s obligations now extend to “workers” who are more broadly defined than “employees” under previous legislation.
The Subtitle also discusses the provisions in the Work Health and Safety Act 2011 regarding:
(1) the broad general duty imposed on PCBUs to consult with workers on matters relating to work health and safety;
(2) the appointment, powers and functions of health and safety representatives, health and safety committees and health and safety inspectors;
(3) processes for dispute resolution;
(4) protections against victimisation; and
(5) offences and penalties.
The new work health and safety legislation came into force on 1 January 2012 for the Commonwealth, the Australian Capital Territory, New South Wales, the Northern Territory and Queensland and on 1 January 2013 for South Australia and Tasmania. Subtitle 26.8 “Occupational and Work Health and Safety” focuses on the new work health and safety legislation as case law regarding the new legislation is scarce.