Developments in OSH in WA - The Green Bill

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The  WA version of the Model Work Health and Safety Bill has been tabled in Parliament as a Green Bill for public consultation.

On 12 November 2014 Ian Munns, Director of Policy and Education at WorkSafe delivered the following podcast to provide information on what the proposed WHS Bill means, the modifications that have been made and how your input will contribute towards the final decision on occupational safety and health laws in WA.

This podcast has been uploaded in three parts. WorkSafe recommends you listen to all three parts.

Developments in OSH in WA - Part one, by WorkSafe
Developments in OSH in WA - Part two, by WorkSafe
Developments in OSH in WA - Part three, by WorkSafe

Transcripts of each part can also be found below.

Part one 

In the old westerns they talk about the green horn they were fresher out and not very matured, the Green Bill is in that sort of state it is not mature it is still in its progress to being fully developed and it’s being produced for a consultation process so it is a consultative document. When we ordered some for printing from the State Law Publishers so we can provide them to the Minister to table in Parliament they actually also come on green paper. So they can’t be confused with anything else it is clear it’s the Green Bill.

So the timing, in terms of, you know, the process we are in at the moment, the Minister did table it on the 23 October and at that time he announced it was going to be available for a three month, a little more than three months, consultation process through to the 30 January 2015.

He also spoke about another process that has been taking place around the same time which is a COAG review. You may or may not of heard about that but it is a review being undertaken by the coalition of Australian governments, that is what COAG stands for. For the jurisdictions that already had the model laws in place for either two years or a year decided that they were going to undertake a review of how they’d worked in those states. So there has being a process undertaken nationally, and a report’s due to be prepared by Safe Work Australia by around the 31 December this year. So it is due by the end of the year whether it is exactly then or not it is another matter.

But that will be another piece of information that the Minister said in his speech, that he will rely on to determining the best way forward for Western Australia. So he is going to consider the feedback he receives back through our local process, the feedback he receives via the COAG review report and as he indicated in his speech he is going to look at what is the best occupational safety and health laws for Western Australia.

So when he tabled the Green Bill he made it clear he wasn’t committing Western Australia to adopt the model laws as they were in the Green Bill. He wasn’t committing us to take them on with further modifications based on the feedback. Cause he left it open that we may actually take the OSH Act and modify it. Depending upon the feedback to determine the best legal framework for occupational safety and health in Western Australia.

He indicated he is hoping to have a position on that by the middle of next year, so there is some time yet before we actually have a fresh set of laws in Western Australia. That does seem like a fair way off, but that time will pass fairly quickly, and it is quite an important period of time for us, in terms that it is an opportunity for everybody in WA workplaces to have a look at we are contemplating, think about the experiences they have had OSH Act and then put their comments forward and have a chance to shape what the law will look like in Western Australian into the future.

Now at the same time, the mining sector is going through the same sort of process, so they are looking at a number of thing including rolling together a number of regimes such as petroleum, major hazard facilities, mining, dangerous goods, rolling them all together into one Resources Act, but their starting point, their planned starting point, will be whatever we develop from this Green Bill process. So they will take what we develop after the consultation process and then insert the specific bits they need for those industry sectors. So then if you move between any of those sectors and general industry, it will look very much the same and be familiar and you won’t need to be re-trained.

The big question everyone wants to know is it going to be different for operating in compared to our current OSH Act? And the short answer is, no. If we think back to 1972 Lord Robens prepared his report and he set a new framework in place for occupational safety and health law. That is what our OSH Act’s based on, and the Work Health and Safety Green Bill based on those same principles. In that it sets a primary duty of care for somebody, it talks about risk assessment or risk management in the case of the Green Bill, and it talks about what, doing what’s reasonably practicable. And those terms aren’t really any different to what we’ve got in our OSH Act, cause we have someone with a duty of care, we have risk assessment, much the same thing as risk management, and we have doing what’s practicable. Now if you end up in court, the courts will look from the perspective of what is reasonably practicable, so this term reasonably practicable is no change for Western Australia. So if you take those core provisions, contained in sections 17, 18 and 19 of the Green Bill you will find that there is not really a lot of change compared to what is expected under our OSH Act.

But we have all heard the saying the devils in the detail. Now as we probably already know the details are in the regulations and so the answer there will be quite likely there will be some changes. This, I suppose, is a time to reflect on how we got here, in that, in 2008 there was a review undertaken of all the OSH laws around the country, and they produced a report which contained over 240 recommendations and that set the framework for the Model Act, which is what we are working with the Green Bill and from there the forum that was formed to look at further development of the laws. Took a look at all the OSH regulations around the country and said what ones are in most places, yes pick up those, and then work with the rest to say what regulations we need to set a framework for delivery workplace safety.

Now obviously, every state thought they had the best, and so it came down to a negotiation, compromise etc, to develop the model regulations. So some things will look exactly the same as what we have in WA now, no change what so ever, maybe a few of the words but the intent of the regulations identical. Some of the others the same intent is there but the words quite different. So it is designed to deliver the same outcome. And there are other things there which we don’t have now, but they seem like a good idea in other jurisdictions so they have been picked up in the Model. And there are things which we have now that we don’t have. So it is a real mixed bag, and that’s where it is necessary to say there will be change, the question is whether it is going to be good or bad.

So if you look through the model law you will probably find two themes, or at least I did when I had a look at it. These themes are no different to what we have in our OSH Act already, perhaps more overtly placed in the model laws.

Now many of you have heard me before, or perhaps know already, I haven’t always worked in the occupational safety and health sphere. So when I came to WorkSafe, I thought well how am I going understand what is going on and what needs to be done, so I started reading the cases which were occurring around the country. If you read those cases, and you develop a spreadsheet as I have you will end up ticking a lot of boxes and that your will find that about 50% of time you are ticking that there is no risk assessment. We have already seen that something that is in our current Act, and is in the future, that there is no change there but it is a real pity to see that it is something, causing events to occur that require prosecution action.

You will also find that commonly training and consultation are two things that are absent in a lot of cases as well. So with that in mind the model laws have been framed to place these two in the forefront of people’s, minds. But if you want somebody to do a job, they need to be trained how to do it and how to do it safely. There’s no point assuming that they have worked in the industry for twenty years therefore they know what they are doing, because there are plenty of examples where someone’s got by with a great deal of luck for twenty years, and on twenty years and one day is when the tragedy happens. And it tracks back to no-one ever actually told them how to do the job safely. Or there are plenty of examples where consultation is a key cause, that people know the procedures have been written don’t work, and we all like to get stuff done, so we find a work around, and sometimes a work around is not the safest thing to do but it gets you there. But nobody thinks to pass that up the line so the procedures can be reviewed and changed. And nobody finds out about it until, you know, the tragic incident happens. There is one case I read where there’s a machine that hadn’t worked properly for ten years, the people who used it, knew it didn’t work properly, but they managed to get the job done using it. Didn’t tell anybody, and the people who needed to know found out when a man’s arm was torn off. A life changing event for him, and those around him, and something that could have been easily avoided if that consultation process had been undertaken.

The model laws are probably much more overt about those things. Training is right up front in amongst the primary duties. It also appears in pretty much every part of the regulations where it talks about a new topic, it starts out in very early provisions about training on that topic, that you have to be trained in this, and trained in that. So it is very clear what’s expected about delivering workplace safety from that perspective. And the Model Bill the Green Bill included provides some very clear provisions on consultation, when it needs to occur, and particularly around the development of workplace practices. And if you are going to make a change, you need to talk up and down in the business to make certain what you contemplating is going to be a safe procedure, and it hasn’t perhaps introduced some other unintended hazard.

If you listen to Professor Straker he will talk to you about ergonomics, and he will tell you when they designed the chair, so we all got a nice comfy chair, gas lift, you know all all right, he’ll tell you, he is a professor of physiotherapy at Curtin, he will tell you that they should of designed it as a church pew, because they have made it so comfortably that we sit there now and now we have another hazard called sedentary work. Church pew would of seen us getting up and moving around cause too uncomfortable to sit there all day. So we need to, when we make modifications, make certain we haven’t introduced some other hazard, in an unintended manner.

Some key terms in the Model Bill which we have used in the Green Bill, these three. The first one isn’t again, isn’t great change from a WorkSafe perspective, but during the consultation process we may find out that people have a differing view to us, and so we welcome to hear about that.

If you look at our section 19 you will find we start with employer, if you look further into the OSH Act you will find that we have inserted other provisions that talk about labour hire, labour arrangements generally, contractors, self employed people, and so we have not just had employer for a long time but we have had a whole range of other parties. Person conducting a business or undertaking rolls all those provisions into one, and says right if you are running a workplace, you have a responsibility to deliver that workplace in safe fashion for the workers. And so that’s other term we have changed. We are not working with employees anymore, we are working in the sense of workers, looking at workers in the workplace.

So 1984 when the OSH Act was developed employee and employer relationships were pretty common. If you had heard of labour hire you were probably on the cutting edge of commercial delivery. Now into the 2010s and beyond labour hire is pretty common, and we don’t know what future labour arrangements may develop. So the use of person conducting a business or undertaking and worker should ensure that everybody in the workplace has, you know, coverage under the proposed laws.

And workplace is the third term, and that is no different to what we have in our current provisions.

So if you get your mind around those three terms, and the core provisions that are risk management, reasonably practicable and a primary duty, you pretty well have a grasp on the Green Bill, and that is where you can say it is pretty well not that much that different from the OSH Act.

Now this slide is a diagram, I leave, I have put in here to demonstrate that everyone in the workplace, both in our OSH Act and also in the Green Bill has a responsibility for workplace safety. So we have talked about primary duty already for the person conducting the business or undertaking, like our OSH Act, the Green Bill contains responsibilities for workers and others at the workplace. So our current environment is if you are a worker in the workplace you need to take reasonable care of yourself, reasonable care of your workplace mates. If you fail to do that you could be found to have committed an offence and find yourself being taken to court.

Similarly visitors have that same sort of duty of care. Now, just because a visitor fails in their duty of care or worker fails in their duty of care, doesn’t mean that the PCBU is free and clear. We were looking at everybody in the scheme of things and everybody can have a part in that particular incident and you’ll find that there are a number of cases where WorkSafe has prosecuted parties at each level almost, in terms of the person running the business, a contractor in the business, and then also a worker. So again, not a lot of change between the Green Bill and the OSH Act.

Now the second from the top one is the one where there is a bit of change and that’s the officers duties. Our Act contains requirements for officers and a potential for an offence. But it is framed in a negative fashion. So if you are an officer in a company you can sit back and do nothing, hope for the best and if everything goes right, you are ok haven’t committed an offence and you are ok. If something goes wrong, or you might have a problem, but you may not have because the way our provisions are framed. The Green Bill turns language around and says your an officer you have a responsibility in the workplace and you have to take some proactive steps to deliver workplace safety. So from our perspective we think that is a very positive move. If you look at the occupational safety and health statistics in Western Australia you will find they’ve, they were way up here 1984 and they’ve, there was a rapid decline and as we have moved through though the 1990s and into 2000s they started to plateau out. So WorkSafe’s view is to make the next change isn’t, about introducing a new regulation about a hazard necessarily, it about getting a mind set change in businesses, a cultural approach to workplace safety and that often starts at the top. So a proactive requirement for an officer of an entity is a smooth, good step forward.

Lots of people ask, how do I know if I am an officer or not? My response to them is well, you should already know you are an officer, because we have taken the definition out the Corporations Act. The Corporations Act already imposes a whole lot of responsibilities on you. So you should be finding out now whether you are an officer or not regardless of the Green Bill, because you could have some surprises coming otherwise.

There is no way to provide a crystal clear view as to where in an organisation officers begin and end. Cause the Corporations Act has a phrase that says:

If you are a person that can make a substantial impact on the financial viability of the entity then you are an officer.

So it is not possible to say it stops at the board of directors, many cases it will, and other cases it might filter down further in the management structure. So you really need to, if you are in that sort of situation, either go back and think what sort of decisions do I make, do they have the possibly effect the company to that extent and therefore I could be an officer.

The responsibility of an officer is to take due diligence. Again it is not a new term, but it is for OSH, it is a well know concept within the corporate world so again it shouldn’t be a great surprise, but the Green Bill in section 27 subsection 5 has a fairly clear list on what you need to do to make your due diligence tests.

Those sort of things of things are to have an awareness of your business and the risks it contains. Now if you’re an officer of the company and you are running the company, you expect that that is something that should have anyway, they should know what their business does and what risks it presents.

It says also that you also you need to make certain you have made resources available, so that the workplace safety can be delivered. It is a common aspect of the officers of an organisation to look at the budget and they should be allocating money on resources towards all sorts of things including workplace safety. So again, it is not a new overly onerous requirement. It also talks about ensuring that the PCBU, the organisation the work for, is compliant with the law. Again, you know, if they are running the company they should be making sure the company complying with all sorts of laws, tax law, environmental protection law, workers compensation requirements, occupational safety and health is just another one of those. So again, it is hard to argue that it is an unreasonable requirement.

So, as I say, from our perspective it is a positive move, but it is an area we anticipate we might get some feedback on.

So what have we done to modify the Work, Health and Safety Bill to make into the WA Green Bill. So, we’ve got a starting point of the government’s three issues, now some of you who might remember back to 2010 - 2011 it used to be four issues. When now it has now been cut to three issues, and they are probably fairly familiar, union right entry won’t be included in the Green Bill because it is already now Labour Relations laws. That it is superfluous to duplicate it and it can just can cause confusion and possible error. Reverse onus of proof in discrimination matters is not going to be included. Interestingly in 2008, or there about, when the harmonisation process kicked off, one of the things they were looking to remove was reverse onus in the laws in other jurisdictions. So, the Minister feels that it is not appropriate to include it, particularly given it is a reversal of the usual approach to taking matter to court. If you want to make an allegation, then it is up to you to bring the evidence forward.

And the third one there is the removal of capacity for health and safety reps to direct unsafe work to cease. The government always maintained the position that it is an unreasonable expectation to impose that on an health and safety rep. Every worker under our current Act and also under the Green Bill has a right to cease unsafe work. So their in a position to make that decision. But it wasn’t going to be imposed on health and safety representatives. Health and safety representatives still feature heavily in the Model Bill and as you will see later on we made some small modifications there, but they are essentially around retaining the status quo in Western Australia.

Now the fourth issue that used to be there was the penalty levels, so you will find that the Green Bill now does actually contain the penalty levels as set in the Model Bill. The government had previously indicated that they might not adopt the full level of penalties but they since decided that they would leave them there as a maximum. Noting that it is up to the courts as to how much the penalty is actually, actually imposed, and the court will take into account, the severity of the incident, financial capacity to pay, and a range of other factors in setting that amount. And in Western Australia our current maximum penalties have never been imposed so, just because the maximum is there doesn’t mean the courts will necessarily going to use it.

So other rules we had for making the modifications were firstly provided to us by the Minister in his Ministerial statement in August. His one he made them alerting us to the fact it was going to be a Green Bill. He said he was looking for a reduction in red tape, and things to be taken out that might have increased compliance costs. So those are the first two rules we operated by in terms of making other modifications. And he also said he would like us to keep the amount of modifications to a minimal amount. The reason there being, that if we want to get the benefits of harmonisation, in terms of people who travel between states for work or organisations that have businesses across state boundaries, we wanted to have as much benefit out of having common law across those boundaries as possible and so keeping the amount of change to a minimum amount was part of the rules.

Part two 

We did change some things so we will just go through a few of those now and the definition of worker is one of those areas of change. There are two things that we have specifically excluded. The first one being volunteers. If you think back to 2012 you might recall there was quite a bit of media interest in the inclusion of volunteers as a worker. We have taken that on board and had discussions with various bodies that it would affect. And we note also that volunteers are already covered under the West Australian OSH Act. So they are other person at the workplace. If you are an other person at the workplace, under our current law, the person running the workplace needs to make certain that person is safe, whether they are a volunteer or just some other visitor. So that’s the approach we have taken with our Green Bill. We have taken them out of worker definition but they will still be included as other person at the workplace. And on that diagram other persons at the bottom has take reasonable care, and the person at the top have primary duty to ensure their safety.

Prisoners has been removed on the basis of that there is a lot of other processes in place to ensure their safety in terms of the environment they are in. If they go out on a workplace placement on a day release, they will be in a workplace then they will be a worker at that place, but when they are actually inside the prison system, perhaps working in the laundry, doing the laundry for the institute they are at, they are not going to be a worker, but they are covered by other rules that govern prisoners, so they have been removed.

As I mentioned already health and safety reps has been modified to ensure it is consistent with the OSH Act. But one of the things we did do was within, remove the role of a deputy health and safety representative. Our thinking there was much the same as the OSH Act the Green Bill contains a whole set of specifications on how you go about determining how many health and safety representatives you have. Very similar to what is operating in our OSH Act. If you get that right, you will have the right number of health and safety representatives so that if there is changes of shifts, number of workers, different types of activities in the workplace, then the need for a deputy health and safety representative is not there. If they were included, it means that there is a whole range of extra things that the workplace is going to have to do in terms of extra training and those type of things which is going to be a compliance cost and therefore seen as an area which we could remove from the Green Bill to reduce compliance cost and also at the same time retain a system that works pretty much as it is under our OSH Act at this moment.

Now it is quite possible that will be an area that you might want to comment on, or others will want to comment on. The whole process of the Green Bill, in the consultation process is to find out have we done too much or have we not done enough in making our modifications. So we have a view from inside WorkSafe but we really do want to hear the views of others in terms of have we gone too far, or are there other things we could do.

Now control is in the Model Bill considered by some to be a confusing issue, it is not actually specifically laid out anywhere. But if you look at those, the three provisions mentioned before, sections 19 and 17 and 18 and working in concert you will find you will get a pretty clear view of how control operates in the Green Bill. Particularly if you look at the section on what is reasonably practicable, it talks about what you ought to know, what you do know, what you can change and, you know why haven’t you sort of changed it type questions and that works all in together with the issue of control. Now section 16 of the Model Bill also has aspects of control in it. But despite that there is still some concerns that are expressed in the community which was also picked up in South Australia. We had a look at what South Australia had done and they had inserted an additional provision in their section 17 to give, great, what they though was greater clarity to the issue of control. So we’ve, we have gone down the same pathway and inserted that provision. There will be probably be varying views as to whether is needed or not. I think in a strict technical sense it wasn’t needed, but the law is meant to be providing clarity to people, so if we, if it is going to be something to provide clarity, then we have included it as a, as a positive step forward.

Now enforceable undertakings. We have enforceable undertakings in Western Australia at the moment. But they only arise if you’ve been taken to court and we have taken prosecution actions against you and the court decides that is the right way to go in terms of dealing with the matter. They can order then an enforceable undertaking is entered into. To date they have never done it, and it is hard to foresee a situation where they might do it. The Model Bill, in its pure form contemplated enforceable undertakings as an alternative to prosecution. So if WorkSafe was going along investigating an incident, and the person who is conducting the business or undertaking thought, umm I am not certain about this, I don’t want to admit guilt but yeah I will go and talk to the regulator and try and avoid prosecution and enter into an enforceable undertaking, that’s something they could do.

They already operate in a number of other jurisdictions, particularly under the model laws. But even prior to that. They are principally used in Queensland, and by ComCare used them a few times. If you look at the ones they entered into, you often can think to yourself well, that enforceable undertaking is only really requiring them to be doing what they should be doing anyway, it might say how much money they are going to spend on training, but they should already be doing the training, so what is the value of the undertaking. So on that basis we’ve opted to remove enforceable undertakings as a pre litigation option. It is still there for the courts to order if they wish, but it’s not available as a, this is a way to get away from having legal action taken against us.

Certainly there is some saving from a WorkSafe perspective on this, and that’s probably not so much a red tape from outside the organisation, but a red tape inside the organisation’s perspective. In that if we do enter into an enforceable undertaking, we’re then going to have to monitor that they are doing what they say they are going to do. If a matter’s gone to court, and a court says the fine is this, it is pretty clear when the fine has been paid or not paid. Enforceable undertakings is that you are going to run certain number of training courses in a certain number of locations and spend a certain amount of money, then we are going to try and track that, which was going to mean WorkSafe was have to divert resources away from things it is doing now to do that sort of monitoring activity. And from a community perspective that was probably a poor outcome, it meant we were going to be able to do perhaps as many inspections, and so we’ve decided to remove that as an option.

Now the Model Bill, and the model regulations for that fact, contain quite a number of time limitations. So that there is a number of times in the Bill that we will talk about how frequently a committee should meet, how many days you had to do something, and if you didn’t do it you then you missed your chance type thing. So we went through the Model Bill and we are doing the same with the regulations, and looking at each of those and saying is that a reasonable time restriction to have in the law or does it create some problems. One of the examples I have got there is improvement notices. So if we, if an inspector come out to your workplace today and they find something is wrong, they might issue an improvement notice and they might say well this is going to take you a while to do, so I will give you two months to do it. From the time you receive that improvement notice that sounds pretty good, plenty of time to get the job done. But two weeks out from that date you have to have it completed, you find the supplier can’t come through, and they can’t get the stuff you need because it is going to be stuck on the other side of the country, and you not going to be able to comply with that improvement notice. Under our current regime you can write to the Commissioner and ask for an extension of time and he pretty well provides that extension to allow you to be able to comply. The Model Bill said you had 14 days to ask for that extension. So if you passed your 14 days before your suppliers said you couldn’t get the stuff you needed, then what you are going to do? You couldn’t ask for an extension and you were going to fail to comply with a notice which means that you have committed an offence. We thought that was a bit unreasonable, so we modified it to retain the OSH Act approach which is you have up to the compliance date to seek that review or extension.

So we have done that sort of things in a number of places, it is a red tape compliance type issue. The system works well in Western Australia as it is if you have a challenge meeting your improvement notice you can get an extension so we’ve gone for a status quo approach.

As I say we have done that sort of thing throughout the Act, and we will be doing that sort of thing throughout the regulations, and I didn’t want to go through all of those today but I thought I would cover two. The other one is the time limitation for commencing a prosecution. So the Model Bill contemplates a period of two years from the time the regulator becomes aware of an incident. And we need to get our investigation completed and the matter before the courts in the two years. Currently in Western Australia it is three years from time the incident occurs. After taking advice from the State Solicitors Office we have decided to retain the WA approach of three years from the time the incident occurs. And it doesn’t mean we are going to sit around and just wait until the three years rolls around, we will be looking at doing it as quickly as we can. But for some more complex matters where we need to get expert’s opinions, or there’s a lot of witnesses to get their views of what happened, we have allowed ourselves that three year period to complete the task. But the Commissioner’s view is that all those sort of things really should be within a 12 month timeframe, so he’s working towards a much shorter timeframe, but we recognise there are going to be cases where we need as much time as is available. And the State Solicitors Office view was three years was the right amount. I image that will be an area where we will get some comment on and you may have a view on it to yourselves, we are very happy to hear what different people think. Some people might think we might need even more than three years. But, they certainly might think we should have less. Wait and see.

We also went through the Model Bill and looked at what enforcement powers does the regulator have, particularly, you know what can an inspector do, and went through it with an eye to ensuring that we had at least what we had now. And when we did that we found there were some areas where we didn’t quite have what we needed in terms of by comparison to the OSH Act and we also found there was some things that were additional to what we’ve got now, that we decided necessarily want, so we chose not to include infringement notices. That topic was discussed at the Commission for Occupational Safety and Health on a number of occasions to try and work out was that the sort of thing we should introduce into Western Australia. And they couldn’t come to a view to confirm it, and provide the Minister with advise to that affect and so we gone down the pathway of not including an infringement notice scheme at this stage. It does not mean that we can’t put it back in later, but at this stage that is the approach that has been proposed.

There are also provisions around remedial action. Now what that meant was that if we identified a workplace that had some problems, WorkSafe could step in and force the changes, spend the money and then try and recover it from the PCBU. We felt that was something that WorkSafe didn’t want to be getting involved with. Certainly it creates some challenges for us in terms of recovering the funds. We also felt that we had plenty of other enforcement tools available to us to achieve what needed to be done in terms of delivering workplace safety. If something’s so bad that we have to go and do something about it ourselves, then we should be just using a prohibition notice and stopping that activity from occurring until the person conducting the business or undertaking sorts it out. The Act is built on the premise of primary duty with the PCBU remedial action was sort of contemplating a situation where that was shifted back to the regulator. That wasn’t the ideology of Lord Robens and it certainly wasn’t what we wanting to adopt here, and to say we have other mechanisms for getting the outcome we needed.

Improvement and prohibition notices, we need to make some small modifications there to ensure they allow inspectors to have the same coverage as they have in Western Australia today. One of the areas of change was in relation to employer provided accommodation. That’s not a workplace. Improvement notices in the Model Bill were framed around issuing an improvement notice or a prohibition notice at a workplace. But employer provided accommodation is not a workplace. So we have inserted a provision that allow our inspectors to write notices in those places as appropriate. Again that is essentially to retain the coverage that is in our OSH Act.

Part three 

We have just started the work on the Model regulations using the same guiding principles as we had used for the Model Bill. We’ve taken a view of reducing red tape and maintaining compliance costs at an acceptable level and we are looking at keeping modification to a minimal amount. But if you look at the regulations you will probably say how are they going to do that minimal amount bit and remove the expansiveness of the Model regulations.

The model regulations do contain a lot of prescription. There are lots of things in it that says you should do this and you should do that, you need to keep paper work for 30 years, you need to do all sorts of things. Again we felt that a lot of that was a deviation from the ideology of Lord Robens and so we are probably going to have to modify the regulations more extensively than we have the Model Bill.

We have started that work. Now I mentioned earlier that the Green Bill will be adopted by the mining sector. The model regulations will also be picked up by the mining sector to the extent that it applies in a minesite. So the regulations on manual tasks, noise, plant, chemicals, high risk work will all be the ones developed under this process. And then they will insert mining specific regulations about what you need to do with, you know, when you a kilometre below the ground. So, our modification process is at the moment that we liaising very closely with Resources Safety to ensure whatever we are developing will be suitable for both general industry and the mining sector and others that they are looking to include in there rolled together Resources Bill. I imagine once we have completed which will take us sometime into the early new year, we will have a set of regulations available for this sort of process in terms of comment. Again, have we gone too far, have we not done enough, what is the view of the people in the workplaces that are going to have to comply with them and implement them? As I say, there is a fair bit of work to do there, and they won’t be probably completed until early in the new year.

The question then I suppose extends into codes of practice. What is happening with the codes of practice, there is about, there is 23 or more codes of practice that have been developed under the model law process. We need to do the same sort of thing there. We will have to look at those and say if we made a modification to firstly our Bill and our regulations then what are will we have to do to ensure that the code is complementary to those modifications. We may find that there are things we need to put into the codes, and maybe, we may find that there are things that are in the codes that stipulate activities that we have taken out of the regulations and therefore need to be removed.

Now I should also note at this point that the codes of practice are a topic that were considered during the COAG review. There was, I understand there was quite a bit of feedback into that process around the extent like the length of codes, and the language used in the codes and Safe Work Australia are considering that feedback and it means that there could be a bit of a shift in terms what a code of practice look like will the existing codes for other jurisdictions be kept in same form as they are now, or will they be modified, and so we’ll have to wait until that decision has been made before we can really embark on what’s happening with the codes, cause they may change quite significantly. There were some documents that were being developed as codes that ultimately came out as guides, and that could be the general thrust of the approach to the delivery of those sort of information documents.

This slide speaks for itself pretty much, when we get to the end of the process, what we have will not be what we have got now. The Minister did make it clear that he is looking at a range of options that wasn’t necessarily the Work Health and Safety Bill as the Green Bill or a modified version of it, or the OSH Act, he was looking to develop the most appropriate and suitable law for Western Australia which means there will be outcome of change. But as you have probably sensed we’re trying to model whatever we do around the concepts in the OSH Act that are working well now, if it is working well why change it, but also as the Minister said in his speech in October, clearly there’s time for a review and a time for, you know modernisation, bring things forward from 1984 to 2014 and so there will be some changes made.

When you go from point A to point B it always takes some time so if we go from the OSH Act to some other regime it is not a matter of we are turning the switch off today and turning the other switch on tomorrow and everyone has to be compliant. There will be provisions built into it that say this is how long you have to get from point A to point B on specific topics. If there’s no change whatsoever, so if the noise regulation as we have now in WA, is replicated exactly in the Model Bill, and therefore there will no change and there will be no transition. But for chemicals, where there is a different approach to labelling, there is a transition period and that is one of the longest transitions which is five years. We are not expecting people to run out and slap new labels on everything straight away, you can do that if you want to but the contemplative process whereby you use up the stocks you have, as you replenish those stocks the new ones that come in, bring in, are compliant with our, with the legal requirements, and that gives you a period of time to transition through. Now you might not need the five years, but depending upon you’ve got and how frequently you use it, it does give you that scope.

The general rule is around about 12 months. So if you have got something you are doing now, and there is something that has to be different, there is a 12 month period built into the system to allow you to get from the old point to the new point, which might mean re-writing procedural documents all manner of things you might need to do, so you will have period of time to do it. Now some which are a bit shorter but, 12 months is probably pretty much rule of thumb.

Now in that period of time WorkSafe will be still out there active in workplaces. We are not going to sit back and do nothing. We will still coming out and doing inspections and alike. Very much like we do now they are educative in approach, but our adoption of enforcement measures will be more measured in terms of understanding you are still perhaps moving from what you were doing in recent times under the OSH regulations, to whatever the new regulations require.

Remembering of course though section 19 and the primary duty of care hasn’t changed, so there are some things pretty obvious you should have been doing regardless of what the regulations say and they’ll be something that we will be taking into account as we work through that timeframe.

So the current process is a consultation one. As I have said we are keen to hear the comments we have actually already received some emails into our, that in box, so people are actually already sending us views. We have also been receiving questions to the email address. If you there is any question in your mind about, I am not certain what I want to say about this, and I need a bit more information first, send it to that email address, it will go to the people who are working on this material and they will send you a response which will hopefully assist you in forming your view on as to what you do or don’t want to say on the Model Bill.

I have mentioned the regulation process, and I have also mentioned that the government’s looking to making a decision about the best framed laws for Western Australia in the middle of next year, and that was in the Minister’s speech on 23 October.

All this information is available on our website. So if you go to the website you will find:

  • A copy of the Green Bill
  • You will find a copy of both the Minister’s statement in August and his speech in October
  • You will find a list of all the changes we’ve made, way beyond the one’s I’ve mentioned here today, so it goes down to every little thing, even if it is little modification, its listed there, and you can look at the provision that is that is in our Green Bill and compare it to the model and say ok how have they changed it and then form a view as to whether it is a good or bad idea

And by all means make certain you subscribe to our email alerts to get updates of anything else we are putting on the website.

There’s another document there that I haven’t mentioned as yet, it is the RIS that we undertook in 2012 in relation to the model regulations. So you may recall Marsden and Jacobs did a review for us and they produced a comprehensive report. That’s also available from our website. If you want to have a look at that, that probably gives you a bit of an insight into the sorts of things we are looking at modifying in the regulations. They had in their process identified things that were going to impose costs, things that were, you know, they were somewhat indifferent about, in terms that it wasn’t good it wasn’t bad and things that they saw as definite positives and worthwhile adopting. So we are using that document as part of our review process and if you want to know, or get a sense for where we might be heading, that’s that’s a good document to have a look at. Don’t hit the print button, it’s about 400 pages long, find the pages you want and print those. Its quite comprehensive.

Now because the model regulations are not law in Western Australia and neither the codes are approved in Western Australia, they are not available on our website but if you want those you can get them from the Safe Work Australia website. By all means have a look at those, cause you may want to look at those in helping form your views.

And with that I have come to the end.

Last updated 26 Nov 2014

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