On December 11, 2009, a significant milestone was achieved.
On that day, ministers from federal and state governments agreed to the model Work Health and Safety Bill (WHS Bill) – one, singular national piece of occupational health and safety (OHS) legislation which would apply throughout Australia.
By December 31 2011, that agreement said, six different sets of OHS laws would be merged into one. The result would be simpler compliance for employers and consistency for workers in terms of rights to protection and compensation.
Alas, two years on, harmonised OHS remains a distant dream.
The latest report from the COAG Reform Council gives a damning assessment of progress to date, saying that the 2009 agreement has been effectively undone by the failure of some states to pursue the required legislative amendments for effective harmonisation to be put into practice.
“The milestone for the Workplace Relations Ministers‘ Council to agree the model OHS Bill was initially completed by all jurisdictions when the council agreed to the model Work Health and Safety Bill on 11 December 2009,” the report says.
“However, the council takes the view that this agreement has effectively been undone by NSW, Victoria and Western Australia because of actions taken or subsequent statements made by these jurisdictions”.
As at the start of this year – when harmonised laws were supposed to take effect, just three jurisdictions – New South Wales, Queensland and the ACT – had enacted harmonisation reforms. Several (see below) have so far done nothing at all.
Not surprisingly, building and construction firms are frustrated. Dr Eileen Doyle, director of Boral and property group GPT, says that given Australia’s small population, the current level of red tape that national economic reforms including OH&S were supposed to cut represent ‘an incredible cost that we shouldn’t have to bear’.
“That fundamentally affects our ability to be competitive in the world” Doyle says.
How the states stack up
As mentioned above, progress across states varies from some having fully implemented necessary reforms to others having done nothing.
Here’s how your state’s efforts stack up.
New South Wales, Queensland and ACT
All three of these states/territories have enacted legislation broadly consistent with the WHS Bill.
Queensland and ACT passed the legislation with only minor amendments to enable the laws to operate effectively within their jurisdictional framework. New South Wales enacted laws which support the Bill with the exception that unions retain the right to bring prosecutions against employers where WorkCover NSW and the Director of Public Prosecutions decide not to.
Western Australia and Victoria
Both Western Australia and Victoria say they support the basic concepts behind the WHS Bill but that they each need more time to conduct a cost-benefit analysis with regard to its effect in their respective states. Western Australia also says it has not had sufficient time to work through consultative and parliamentary processes or concerns about mining related issues associated with the Bill.
Furthermore, Western Australia says it is unlikely to implement four areas of the model WHS bill: penalty levels; union right of entry; health and safety representatives‘ capacity to direct the cessation of work and reverse onus of proof in discrimination matters.
South Australia, Tasmania, Northern Territory, the Commonwealth
Though neither any the above state/territories, nor the Commonwealth, have indicated any opposition to the WHS bill, the report says that none have introduced any laws to give effect to their harmonisation legislation in their state.
In short, these jurisdictions have done nothing. Whether or not any of them will enact legislation giving support to OH&S harmonisation remains to be seen.
Until the direction of harmonisation legislation becomes clearer in these states, the prospects for harmonised laws across the country remain unclear.
Dream Still Years Away
In short, as it stands, complete harmonisation of OHS laws – which was supposed to have been in place from last month – is many months and most likely years from being achieved.
For now, different laws in different states remains the reality confronted by business not just in building and construction but in every industry across Australia.