1. National Model OHS Laws and their impact in South Australia
Tony MacHarper
SafeWork SA
Department of the Premier and Cabinet

2. The Aim: One Work Health and Safety Act for Australia
one model law (Act) and model regulations and codes of practice
Compliance and enforcement arrangements are consistent across jurisdictions
For business - a reduced regulatory burden
For workers – fairness - the same conditions for a healthy and safe workplace exist and are consistently administered

3. Events Leading to Australia’s New Model WHS Act
Intergovernmental Agreement 2008 on WHS reform, committing all States, Territories and the Commonwealth to implementing model WHS laws.
National Review into Model WHS Laws (completed in January 2009); and
the establishment of Safe Work Australia, which has responsibility to develop the model WHS legislation: OHS Strategic Issues Group developing the models

4. Where are we up to?
On 11 December 2009, Ministers endorsed the draft of the Model WHS Act
Safe Work Australia : Governments & employer & union representatives developed national model regulations & priority codes of practice
The full set of model regulations & priority codes of practice released for public comment from 7 December 2010 to 4 April 2011
PSWR to advise CEO’s on the comment process
Jurisdictions need to adopt the Model Act, regs and codes by January 2012

5. Structure of the Model WHS Act
The new Act will be called the
Work Health & Safety Act
Scope, objects, definitions
Duties of care and other obligations
Consultation, participation and representations
Protection from discrimination   

6. Structure of Model Act cont
Workplace right of entry (for union officials)
Functions and powers of the Regulator and Inspectors
Legal proceedings; and
Other administrative matters

7. What does this mean for SA?
The new Act in SA will be called the
South Australian Work Health & Safety Act
Overall it is consistent with the SA OHSW Act but will include dangerous substances
Functions and powers of the Regulator and Inspectors consistent with current SA Act, but improvements provide greater accountability and transparency
Workplace right of entry (for union officials) consistent with Fair Work Act as far as possible
Legal proceedings and local tripartite consultation arrangements will be SA-specific   

8. Scope and application Overall it is consistent with the SA OHSW Act
Act will bind the Crown
It applies to all industries; and
It requires protection of the health and safety of any person - including the public - from exposure to hazards and risks that arise from work.
Persons may have more than one duty and more than one person can have the same duty

9. Duties of Care – Model Act

10. Persons conducting a business or undertaking
The primary duty holder under the Model is the PCBU
In terms of outcome, the Model is consistent with SA OHSW Act in relation to duties
PCBU must ensure, so far as is reasonably practicable, the health & safety of workers while engaged at work in the business or undertaking, and that other persons are not put at risk from the conduct of the business or undertaking.

11. Who is a Person conducting a business or undertaking
‘Person’ includes a body corporate, unincorporated body or association and a partnership
Applies to activities whether conducted alone or together with others, for profit or not for profit, with or without engaging workers
Intended to capture the broad range of work relationships and business structures
Does not extend to a person’s private or domestic activities or to ‘volunteer associations’ (as defined)

12. What does this mean for SA?
The primary duty of care for the PCBU is equivalent to s19 of OHS&W Act
PCBU concept provides greater certainty about workplace duties
Removes ambiguity re responsibility eg principal contractor/contractors
Clarifies duties
Confirms sharing of information
the PCBU concept ‘casts a wider net’

13. Officers – Model Act Who is an officer?
Director of the organisation
who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking (including equivalent person in a Govt department or agency)
Who has the capacity to significantly affect the organisation’s finances
Receiver or manager of any property of the organisation
Liquidator
Excludes Ministers
Officers to exercise ‘due diligence’.
Volunteers, local government councillors immune from prose- cution for offences committed under the model Act in their capacity as an ‘officer’
Definition of ‘officer’ based on Corporations Act 2001

14. What does this mean for SA?
Officer duties are generally consistent (with SA OHSW Act and FWA)
Responsible Officer provision of SA legislation is not in the Act
No significant change for SA workplaces – obligations and duties are consistent

15. Officers to exercise due diligence
Acquire safety knowledge (via training & reporting of safety performance)
Understand the activities undertaken by the Agency and the related risks
Provide appropriate resources & processes essential to achieve compliance with any duty or obligation of the PCBU
Consider incidents, hazards, risks – ensure information is there to monitor these/solve problems
Have objective & verifiable records of the provision & use of the above elements

16. What does this mean for the Public Sector?
CEO (agency or public authority) is the PCBU
Members of a Senior Executive Group e.g. Deputy CEO’s/Executive Directors likely to be regarded as Officers - have decision making capacity/control over the Dept or Agency.
Heads of Business Units (Executive) remain accountable for health & safety of the people in that Unit

17. Consultation – OHS Act Duty to consult with workers
- Qualified by ‘reasonably practicable’
- defines consultation as well as how and when it should be undertaken
Health and Safety Representatives (HSRs)
- Must be established on request from a worker
- Can direct unsafe work to cease and issue provisional improvement notices, but only if trained
Health and Safety Committees
- Must be established within 2 months where requested by HSR, or 5 or more workers

18. What does this mean for SA?
Consultation obligation continues
Power to cease work and issue notices is consistent but applies only after training (must occur within 3 months)
Training obligations - slight change
Overall minimal impact for SA workplaces –esp. public sector

19. WHS Entry Permits (Union right of entry)
Entry to inquire into a suspected contravention:
WHS entry permit holder not required to give prior notice of entry to inquire into a suspected breach of the model WHS Act.
May inspect the workplace and consult with workers and the relevant PCBU.
After entry permit holder must give the PCBU notice of entry & details of the suspected contravention.
Entering a workplace to inquire into a suspected contravention of the model WHS Act:
A WHS entry permit holder is not required to give prior notice when entering a workplace to inquire into a reasonably suspected contravention of the model Act. This is similar to the requirement found in the Fair Work Act 2009 (FW Act) in relation to the exercise of rights under State and Territory OHS legislation.
Entry to inspect or take copies of employees records or documents not held by the PCBU:
A WHS entry permit holder is required to give 24 hours notice to the PCBU and the person from whom documents or records are sought if they are entering a workplace to inspect or take copies of:
- employee records that are directly relevant to a suspected contravention of the model Act,
- records or documents that are directly relevant to a suspected contravention of the model Act that are not held by the PCBU.
- Again, this is similar to requirements found in the FW Act.
Entry to consult with and advise workers
A WHS entry permit holder is required to give at least 24 hours notice to the PCBU before entering a workplace to consult on WHS matters and provide advice on those matters to relevant workers.
While at a workplace to consult with and advise workers a WHS entry permit holder may warn any person of a risk to their health and safety.

20. Work Health & Safety Entry permits
The authorising authority may issue a WHS entry permit to an official of a union, on application, if that official:
has satisfactorily completed prescribed WHS training, and
holds, or will hold, a Fair Work Act 2009 entry permit or the relevant state or territory industrial law entry permit.
Requirement to have a WHS entry permit
A WHS entry permit holder must, at all times when at a workplace exercising a right of entry, have his or her WHS entry permit and photographic identification available for inspection.
Additionally, a WHS entry permit holder must not enter a workplace exercising a right of entry unless he or she also hold a Fair Work Act entry permit or the relevant state or territory industrial law entry permit.
Whether a Fair Work entry permit or state or territory industrial law entry permit is required will depend on the workplace which the WHS entry permit holder is entering. For instance:
- the FW Act requires that a union official must hold a Fair Work Act entry permit when entering all workplaces of constitutional corporations, all workplaces in Territories and all workplaces (with minimal exceptions) in those States that have referred their industrial relations power to the Commonwealth;
- if a WHS entry permit holder was wishing to enter a State government office in many jurisdictions, they would also be required to hold a current State industrial law entry permit.
Eligibility for a WHS entry permit
The authorising authority may issue a WHS entry permit to an official of a union, on application, if that official:
- has satisfactorily completed prescribed WHS training, and
- holds, or will hold, a FW Act entry permit or the relevant state or territory industrial law entry permit.

21. Enforceable Undertakings
An enforceable undertaking is an agreement between an alleged offender and the regulator to implement specific actions
It is considered to be an alternative to prosecution
A breach of an undertaking can be referred to a court to have the undertaking enforced

22. and risk/degree of harm
Penalties – OHS Act
Categories based on degree of ‘culpability’
and risk/degree of harm
Corporations: $3m
Officers: $600k / 5 years jail
Worker: $300k / 5 years jail
Corporations: $3m
Officers: $600k / 5 years jail
Workers: $300k / 5 years jail
Category 1
Category 1
Corporations: $1.5m
Officers: $300k
Workers: $150k
Corporations: $1.5m
Officers: $300k Workers: $150k
Category 2
Category 2
Corporations: $500k
Officers: $100k
Workers: $50k
Corporations: $500k
Officers: $100k
$50k
Category 3
Category 3

23. What does this mean for SA?
Potential significant increase in level of penalties for breaches
No anticipated increase in prosecutions; experience suggests an increase in defended cases

24. Model WHS Regulations
authorisations - registration and licences, for example, asbestos removal and high risk work
workplaces - facilities, first aid, personal protective equipment, emergency plans, considering remote and isolated work
chemicals - inorganic lead, asbestos, labelling, safety data sheets and
major hazard facilities
construction work
other hazards - plant, manual tasks, noise, falls, confined spaces, electricity
To support the model WHS Act, Safe Work Australia is currently developing policy proposals and drafting instructions for the model Regulations and model priority Codes of Practice.
This work involves the benchmarking and analysis of existing regulations and practical guidance material in each jurisdiction, as well as relevant national standards.

25. Model Codes of Practice
Examples of Priority Codes
managing work health and safety risks
consultation
work environment and facilities
asbestos
hazardous chemicals - labelling/safety data sheets
plant, manual tasks, noise, working at heights, construction hazards.
Additional Codes of Practice (development underway):
Fatigue, first aid, bullying, occupational violence
hazardous work codes - diving, abrasive blasting, logging, welding and spray painting.
There will be model Codes of Practice developed for these subject matters.

26. National Timeline
14-15 October: Strategic Issues Group (SIG) meeting – focus on Model Codes of Practice
2 December: Safe Work Australia Council to endorse regulatory package
7 Dec 2010 to 4 April 2011: Public Comment on draft regulatory package
End of 2011: Model WHS Laws package finalised…ready for implementation
2010
2011
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
June 2011: Regulatory package goes to Workplace Ministers for approval
25 November: SIG meeting to finalise regulatory package
3-5 November: SIG meeting to progress Draft Regulations and COPs 26

27. SA Timeline
7 Dec 2010 to 4 April 2011: Public Comment on draft regulatory package
From July 2011: Process starts for SA to adopt WHS Regulations and Priority Codes of Practice
2010
2011
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
Feb-March 2011: SA WHS Bill tabled in Parliament - Parliamentary process commences to enact SA WHS Act for 2012
Late 2010 to early 2011: Public Comment on Jurisdictional Notes for SA WHS Bill 27

28. More Information ? www.safeworkaustralia.gov.au
Model Work Health and Safety Act
Explanatory memorandum
Draft Work Health & Safety Regulations
Draft Priority Codes of Practice
12 Factsheets (covering key issues)

29. Thank You