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On Wednesday 1 June 2016, the WorkSafe Western Australia Commissioner released the Discussion Paper - Work Health and Safety Regulations for Western Australia (the discussion paper) for public consultation.
WorkSafe subsequently conducted a number of public information sessions in Perth and regional locations. A podcast from the sessions is now available. The podcast provides further information about the discussion paper, a selection of the modifications that are proposed and how your input will contribute towards the final decision.
on on occupational safety and health laws in WA.
Hi, my name is Bill Mitchell, and I'm from WorkSafe, and I'm here to talk about Work Health and Safety Regulations for Western Australia, and more particularly, the discussion paper.
Just by way of a bit of background, in December last year, the WorkSafe Western Australia Commissioner released a media statement and he provided advice to people that WorkSafe was conducting a review of the Model Work Health and Safety Regulations, and at the end of that review period, WorkSafe would be engaging in a public consultation process.
On the 1st of June, the Commissioner announced the commencement of that consultation period, WorkSafe having completed its review of the regulations.
There are 138 recommendations in the WorkSafe discussion paper. That discussion paper was released obviously by a media statement.
In terms of WorkSafe’s brief to do its review, it was to minimise the compliance burden for Western Australian workplaces. So effectively what we’ve been asked to do is remove what are unnecessary regulations in the model of work health and safety laws.
As a result of that process, what we’ll end up with is very similar regulations to the Occupational Safety and Health Regulations, and there's some minimal cost, if you like, in terms of those particular measures, and I’ll talk a bit more about the regulatory impact assessment process as we go.
So the purpose of all of this, at the end of the day, is to obtain your views in relation to the Work Health and Safety Regulations for Western Australia.
Just by way of a bit of background, you may be aware that the Minister has released the Work Health and Safety Bill, which was a government proposal. That was released as a Green Bill for discussion purposes. The Green Bill had very similar objectives in terms of reducing and removing unnecessary regulations for Western Australia, and the Act provides the overarching duties, if you like, in relation to workplace safety laws, and consistent with the OSH Act and its regulations, the Work Health and Safety Regulations provide particular details in relation to work safety laws.
And of course the general duty in the Occupational Safety and Health Act, and the Work Health and Safety Bill are very similar, so in some ways there's not that much difference in any of event.
So the format for the discussion paper, the first thing I want to say is that it is a summary, so when we talk about the regulations, if you want to analyse the regulations it’s important to go back to the source document, which is the model work health and safety regulations. The other thing that we put in there is Appendix A, which is a summary of the recommendations, so you can just go straight to that particular Appendix, and you’ll see all of the recommendations by WorkSafe in relation to proposals for changes to the model Work Health and Safety Regulations.
As you go through the discussion paper, you’ll find that we have recommendations and the provisions that are affected by those recommendations, and we’ve colour coded the recommendations for you as well, and they relate to consistency with the current WA laws, reduction of unnecessary prescription, and consistency with the Work Health and Safety Bill, and other one in there as well which we’ll talk about.
So as I go through the discussion paper, with 138 recommendations covering some 700 regulations in the Work Health and Safety Regulations, it's clearly not going to be possible to go through all of those, and I don’t think anyone would want me to do that. So we’ve just chosen a few, which give you some indication about the various issues that we have dealt with as opposed to going through the whole 138 recommendations.
I talked about the regulatory impact assessment. In terms of changes to regulations, or the Act for that matter, the government has imposed a requirement on us to provide a regulatory impact assessment, and effectively that’s a cost benefit analysis, if you like. So if we impose additional regulatory requirements, there's obviously going to be a cost, but there's also a benefit. It’s not necessarily a zero sum. What we’re looking for is making sure that the government and the community is able to make a fully informed decision understanding that there will be costs, and there will be benefit for these measures.
So as I've mentioned to you earlier, the way we reviewed the model Work Health and Safety Regulations, we’ve taken out a lot of the extra costs associated with what we believe are within the Work Health and Safety Regulations, so at this stage we believe there's a fairly neutral cost in terms of the Work Health and Safety Regulations as we proposed, and the existing Occupational Safety and Health Regulations.
So the other thing is that when a cost benefit is done, the baseline is the Occupational Safety and Health Regulation. The Work Health and Safety Regulations introduce a number of new measures, so if you’re in support of any of those measures, there's no problems with that, but what you will need to do is consider the costs that are imposed against the occupational safety and health regulations. So if you’re proposed changes, you’ll need to consider what those costs might be.
The other thing that I would say is, although we’ve mentioned 138 recommendations, please don’t restrict yourself to those recommendations. All of the work health and safety issues are up for discussion, so you can go as far as you want to in relation to providing comments. It’s not just the issues that WorkSafe has identified in our presentation that are in our discussion paper.
There's a couple of things that I’d just like to talk about in terms of variations to the Occupational Safety and Health Regulations. While the model Work Health and Safety Regulations apply across Australia, not all laws are necessarily the same. For example, in Western Australia we have tobacco regulations in our Occupational Safety and Health Regulations, and we have driver fatigue regulations. Those regulations are not in the model Work Health and Safety Regulations, but our intention is that they will be drafted so they are included in the Western Australian version.
Some of the other jurisdictions also have their mines laws within their workplace Safety Regulations. In Western Australia we have two sets of laws: the Mine Safety Inspection Act, which is within the jurisdiction of the Department of Mines and Petroleum, and the general workplace laws, which are covered by the Occupational Safety and Health Regulations.
So those particular laws are going to continue in Western Australia, so Western Australia, for example, will not be adopting the mines regulations in the general Work Health and Safety Regulations.
The government has also made a decision that it will be transferring the major hazard facilities regulations across to the Department of Mines and Petroleum. In relation to dangerous goods, there is already some crossover between the jurisdiction covered by DMP and by WorkSafe, so we’ve had a closer look at that, and we’ve endeavoured to remove as much of that duplication as we can so that people understand which regulator it is that they report to, and they’ll have to deal with.
One of the other issues is in relation to plant registration. So the Occupational Safety and Health Regulations at present apply registrations for designs of certain items of plant, which are specified in the schedules, and also item registration as well. There's been recent discussion within COAG, and also at Safe Work Australia, and already Victoria has removed the requirement for item registrations and Western Australia is heading in that same direction, and that’s part of the proposal that we have here.
The other jurisdictions, our understanding is that they are also heading in the same direction but at this stage Victoria is the only one that has implemented that particular change.
So when you go through the discussion paper you’ll find that it loosely follows the various chapters in the Work Health and Safety Regulations. Exception to that is where there are a number of provisions that apply within each of those different chapters, so we’ve tended to group those at the front. Just by way of example, the retention of records. These go across a number of different parts within the Work Health and Safety Regulations.
So in relation to keeping records, for example, 77(2) requires that the confined spaces entry permit is kept for 28 days after the work is completed, and there's a notifiable incident. So what we are proposing is that at the end of the 28 days, there's no requirement to keep that particular entry permit, an unnecessary element.
85(4) relates to high-risk work licences, and the workplace is required to keep evidence of having sighted a high-risk work licence for one year after the work is completed. We don’t think that necessarily adds anything to safety circumstances, so our proposal is for those particular requirements to be removed.
445 and 460 relate to asbestos and training, and there's a requirement there that the training records be kept five years after the work is completed, and once again, we can’t see that that necessarily adds to the safety requirements, so we aren’t going to require that.
I must say that if people want to keep those records for whatever reason, they’re quite entitled to, but we’re not going to include regulations actually requiring that.
Now in relation to health monitoring, cessation of employment, there are requirements that some of these records be kept for 30 years, which is a long time, and I'm sure you probably realise that there's not many businesses that are around for 30 years in any event. So we changed that so that it's at the end of the employment for the persons to be provided with that information.
Then in relation to airborne contaminants, it should be available to the end of the employment to the worker, so that’s consistent with what we have at present. There is already a requirement in the Occupational Safety and Health Regulations in certain circumstances that WorkSafe be provided with documents if businesses are going out of business, and I think it’s fair to say we couldn't identify one situation where WorkSafe had been provided with that documentation. So clearly that regulation’s not working, and obviously the person has done the work, it’s in their interests to hang onto these records, so that’s the approach that we are taking there.
Recommendation number six, there's a number of requirements there for documents to be available for inspection. That’s not a regulation that we think is necessary. Our Inspectors already have the powers to ask for certain documents to be provided, so that just duplicates that particular provision. So our proposal is that those regulations are removed.
In relation to high-risk work licences, at this stage, an accredited assessor can have any number of high-risk work licence classes. In recent times WorkSafe has been quite active in dealing with some of the issues that have been identified in relation to high-risk work licence assessments. The Commissioner has spoken in fairly blunt terms with some assessors, he has recently suspended or cancelled, and probably tomorrow there's going to be an assessor prosecuted.
The difficulty that WorkSafe has is that we can only take action against those classes that we’ve identified a breach. So what we are proposing that if we identify somebody who has gone through that process, and ultimately been prosecuted, we are proposing the Commissioner has the option to take away the entire accreditation for that particular person.
Clearly if they have had warnings from the Commissioner, and their licence may well have been cancelled or suspended for a period, and then they go to prosecution, they’ve behaved in a really inappropriate manner, and there may even be arguments that it’s fraudulent, the concern we have is that indicates a certain pattern of behaviour, and we don’t think it's appropriate that assessors have the ability to continue on when they’ve demonstrated that sort of conduct. So as far as we can see, it’s not a summary judgement or anything like that, it’s got to be clear evidence that the person has engaged in inappropriate conduct, and so very serious consequences for it. That’s our proposal.
In relation to high-risk work licences, we allow direct supervision while people are being trained. The difference with the Work Health and Safety Regulations is they are proposing that the Supervisor has the ability to determine how much supervision is required, so they get to determine whether it’s close supervision, or even if it is required, and we don’t think that’s appropriate during the training phase, so we are going to remove that particular option. They’ll be able to train or be directly supervised, but the Supervisor will have to be right close to them, they’ll have to be immediately supervising them as opposed to allowing them to be supervised from a distance.
Another issue for us was the immediate suspension of an authorisation. First of all, when our Inspectors go to a workplace and they see a situation which might cause imminent and serious harm, they have the option to issue a prohibition notice at the time. So that means that that work will stop immediately.
What this particular proposal means is that because of the reference to the regulator, the Inspector will have to see the incident, form an opinion, go back to work, convince the WorkSafe Western Australia Commissioner that the cancellation should be immediate. But as you can see, it takes time, and in the meantime, that particular incident can continue to occur. So we believe it’s appropriate for the Inspectors to have that option to issue their prohibition notice.
I think it's also fair to say that people may well have a concern that a regulator immediately cancels an authorisation so that’s someone’s business. So just because we identify a problem at one workplace, doesn’t necessarily mean that it’s continuing on at other workplaces, and if the authorisation has gone effectively all of those workplaces, all that activity, will have to stop.
I've mentioned to you already the differences between Work Health and Safety and the OSH regulation. Demolition is another one of those regulations, so we are going to include class one, class two, class three demolition classes exactly as it is in the Occupational Safety and Health Regulations. So we’ll continue to have the three classes of demolition.
For construction, in Western Australia at present we have five people as the threshold for requiring the appointment of principal contractors on a construction site. This is consistent with the National Construction Standard that was developed some ten years ago. WorkSafe implemented its regulations consistent with that standard.
Some of the other jurisdictions that introduced monetary thresholds, $250,000 I think is the amount they introduced in the eastern states, and some four years down the track they’re now going through the agonies of trying to work out whether it should be 250,000; 300,000; 500, 000; a million dollars. So that’s not something that we are proposing. Our proposal is to stay with the five workers. And when you think about it, the cost of constructing a house in somewhere like the northwest of Western Australia, or the Kimberley, is going to be far more expensive than that than in Perth. When you look at the cost of construction etcetera, if there's a dispute, WorkSafe would then have to go and have a look at the contract and determine if it is a $250,000 contract as opposed to doing a simple headcount.
One of the things that is in the Occupational Safety and Health Regulations is the requirement for local governments to provide advice to WorkSafe in relation to construction permits. That’s quite a useful tool for our construction guys to work out where construction work is occurring, so our proposal is to keep that particular regulation in there as well.
So in relation to health monitoring, at present, duty is on the medical practitioner to forward health monitoring reports to WorkSafe. The Work Health and Safety Regulations propose that goes to the PCBU. The PCBU is effectively the employer or the person conducting the business, or undertaking.
This is one of those situations where there's probably no right or wrong answer, but the feeling is that there's already the practice is well understood that it’s the medical practitioners who provide those reports so we are going to continue with that particular practice. So we’re going to change the Work Health and Safety Regulations so that it is the medical practitioner who provides the reports to WorkSafe.
The next one relates to Work Health and safety proposals which allow the PCB to provide medical records to another PCBU. We have some serious concerns about that because those medical records are personal information, and we believe it should be up to the person concerned, they should have the ability to determine who gets a copy of those medical certificates. So our proposal is for that option to be removed as well.
Now, asbestos, it’s probably fair to say that the Work Health and Safety Regulations impose a number of regulations over and above what would be required in Western Australia. So our brief as explained earlier means that we’ve brought them back to what is required by the Occupational Safety and Health Regulations. So, for example, the Work Health and Safety Regulations require certified safety management systems, more training, etcetera, so we aren’t necessarily going to adopt those particular requirements.
The Work Health and Safety Regulations also refer to class A and class B asbestos removal licences. In Western Australia it’s restricted and unrestricted, and I think that probably means more to people than the class A and class B, so we’re going to change the names, if you like, back to restricted and unrestricted.
In terms of the licences, we’re not proposing that our asbestos removal licences are equivalent to what it is in the eastern states, but if an eastern states person wants to come to Western Australia and do asbestos removal, we’re not going to prevent that from occurring. So that’s one of the reasons, we’ve taken away the word ‘equivalent’.
The Work Health and Safety Regulations push the requirement for asbestos registers from 31 December 1990 to 31 December 2003. So what that would mean is that 13 years of building construction in Western Australia, all of those buildings that were built between the 1st of January 1991 and December 2003 all of a sudden have to go out and get asbestos registers. And in Western Australia the general accepted period when asbestos was accepted as not being in construction anymore was 31 December 1990, so we can’t see any reason to impose that duty on everybody.
Of course if asbestos is found on a structure that was built after 1990, or 1991 onwards, they would of course have a register but we’re not going to require everybody to go out and have another register completed.
So what happens with the Work Health and Safety Regulations, it’s allowed a number of additional people to request reviews by WorkSafe. This creates a number of, or a couple of main issues for us. When we receive an application from an assessor to review a decision for a particular high-risk work licence class, they have the opportunity to appeal to the Occupational Safety and Health Tribunal if they disagree with our particular decision.
In terms of our relationship we can only talk to them because it’s personal information. As a regulator we are restricted in the amount of information that we can provide. So, for example, if we decided we were not going to credit an assessor, for whatever reason, an RTO may want to employ that assessor under the Work Health and Safety Regulations, can come to WorkSafe and say, “I disagree,” and WorkSafe would have to respond to that, but the difficulty for us is that we can’t actually tell them very much about why we didn't do it because the personal information relates to a particular assessor. So we can’t see the point behind that.
Secondly, the assessor has provided the information, the decision has been made, they have other options in terms of appealing to the OSH tribunal. So there's a number of those particular provisions throughout the Work Health and Safety Regulations where we’ve restricted the review options.
There's also a requirement in there, as you can see, in relation to design, registration of plant. Now the only person that is designing the plant is of course the designer. It talks about plant being at a workplace. Well, the plant’s in the design stage so clearly it’s not going to be at a workplace so we’re going to remove that regulation as well.
In the Work Health and Safety Regulations, there is a requirement the regulator must publish class exemptions in the Government Gazette. I know there are a couple of other public service colleagues here but I doubt very much whether non public service people have necessarily read the Government Gazette so it doesn’t have a particularly wide circulation.
When WorkSafe makes its decisions, we have an obligation already to provide as much information to as many people who might be affected. So in that way we are able to determine the best way to reach the people concerned, and in terms of providing the information in the Government Gazette, there is a cost involved in that, and obviously people aren’t reading the Government Gazette, it seems pointless to do that. So that’s another provision that we are looking to remove from the Work Health and Safety Regulations for Western Australia.
When laws come in, people are often concerned that one day one the new laws will be applied. That won't be the case. There will be a transition period, and already within the model Work Health and Safety Regulations, there are transition periods. We’ll be having a look at those but I think it's probably fair to say that generally we’ll endeavour to stay with those transition principles. Before the regulations commence there’ll be some discussion with the various industry sectors as well. So I just wanted to assure you that it’s not going to happen overnight, there will be some warning when it occurs.
Obviously the next steps as I mentioned when we first started, what we really want to do is hear from people involved in workplace safety and hear their views. So we’re encouraging you to have a look at the discussion paper, and consider whether you think there should be any variations. And as I said before, although there's 138 recommendations, please don’t restrict yourself to those 138 recommendations. All of the Work Health and Safety Regulations are up for discussion.
Obviously the idea of this is that it allows the government to make the best decision for Western Australia in terms of workplace safety.