CHAPTER 1

Background

Reference

1.1        On 7 July 2011 the Senate jointly referred the Work Health and Safety (Transitional and Consequential Provisions) Bill 2011 and the Work Health and Safety Bill 2011 for inquiry and report on 26 August 2011.[1]

Conduct of the inquiry and submissions

1.2        The Committee advertised the inquiry in The Australian on 20 July 2011, calling for submissions by 28 July 2011. Details of the inquiry were placed on the Committee website.

1.3        The Committee also contacted a number of organisations inviting submissions to the inquiry. Submissions were received from 11 individuals and organisations, as listed in Appendix 1.

1.4        A public hearing was held in Melbourne on 10 August 2011. The witness list for the hearing is at Appendix 2.

Acknowledgement

1.5        The Committee thanks those organisations and individuals who contributed to this inquiry by preparing written submissions and giving evidence at the hearing.

Background

1.6        In February 2008, the Workplace Relations Ministers Council (WRMC) agreed that the use of model legislation is the most effective way to achieve harmonisation of occupational health and safety (OHS) laws. The Commonwealth and each of the States and Territories subsequently signed the Intergovernmental Agreement for Regulatory and Operational Reform in OHS which commits all jurisdictions to implement the model laws by December 2011.[2]

1.7        The model bill is based on the WRMC's responses to recommendations made in the first and second reports of the National Review into Model OHS Laws (National Review). The National Review was completed in January 2009 and made recommendations on the format and content of a model bill that could be adopted in all jurisdictions.

1.8        The National Review included wide consultation with stakeholders, including a six week public comment process that resulted in 243 written submissions.

1.9        On 18 May 2008, the WRMC made decisions on each of the National Review recommendations and asked Safe Work Australia to begin developing the model legislation.[3] Many, but not all, recommendations made by the review were accepted by the WRMC.

1.10      In September 2009 an exposure draft of the model bill was circulated by Safe Work Australia for public comment. Safe Work Australia received 480 submissions from individuals, unions, businesses and industry associations, governments, academics and community organisations. The WRMC agreed to the provisions in the model bill on 11 December 2009.[4]

Purpose of the bills

Work Health and Safety Bill 2011

1.11      The Work Health and Safety Bill 2011 (the bill) seeks to implement the Model Work Health and Safety Bill (the model bill) within the Commonwealth jurisdiction and if passed, would form part of a system of nationally harmonised OHS laws. The bill would apply to businesses and undertakings conducted by the Commonwealth, public authorities, and, for a transitional period, non-Commonwealth licensees (organisations that used be Commonwealth entities before privatisation, and insured under the Commonwealth Scheme).

1.12      The model bill is intended to be ‘mirrored’ in all jurisdictions. Separate bills would be introduced into each jurisdiction’s parliament to give effect to the model bill.

1.13      The bill includes the following key elements:

• a primary duty of care requiring persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers and others who may be affected by the carrying out of work;
• duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work;
• a requirement that ‘officers’ exercise ‘due diligence’ to ensure compliance;
• reporting requirements for notifiable incidents such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking;
• a framework to establish a general scheme for authorisations such as licences, permits and registrations (e.g. for persons engaged in high risk work or users of certain plant or substances);
• provision for consultation on work health and safety matters, participation and representation provisions;
• provision for the resolution of work health and safety issues; and
• protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the bill.

1.14      As discussed above, the model bill has been subject to an extensive consultation process. Most recently, an exposure draft of the bill was released by Safe Work Australia on 26 May 2011 for the purpose of consulting on the workability of specific provisions. Safe Work Australia has advised that the submissions received during the consultation have informed the development of the final bill.

1.15      Key provisions that were identified in written submissions and at the hearing are outlined in Chapter 2.

Work Health and Safety (Transitional and Consequential Provisions) Bill 2011

1.16      The Work Health and Safety (Transitional and Consequential Provisions) Bill 2011 would make transitional and consequential provisions in relation to the new Commonwealth OHS laws set out in the Work Health and Safety Bill 2011.

1.17      The Work Health and Safety (Transitional and Consequential Provisions) Bill 2011 would:

• repeal the Occupational Health and Safety Act 1991;
• make a range of transitional provisions; and
• make consequential amendments to the Safety, Rehabilitation and Compensation Act 1988 and the Social Security Act 1991.

Status of State and Territory mirror legislation

1.18      All states (except Western Australia) have agreed to implement the new laws by the end of 2011.[5]

Australian Capital Territory

1.19      The model bill was introduced to the ACT Legislative Assembly on 23 June 2011.

New South Wales

1.20      The NSW Work Health and Safety Bill 2011 was passed on 1 June 2011 and assented to on 7 June 2011. Initial amendments to the model bill that were introduced by the then Labor Government, were removed by the Liberal National Government, and then restored following Legislative Assembly Amendments. Significantly, the amended model bill, as adopted in NSW, includes a right for unions to prosecute; this right does not exist in the model bill.

Queensland

1.21      The Queensland Parliament introduced the model bill on 10 May 2011, and passed the model bill on 1 June 2011.                                                                                                                                                                                                                                                                                                                

South Australia

1.22      South Australia (SA) was the first jurisdiction to introduce the model bill on 7 April 2011 but it was withdrawn on 3 May 2011 after claims by the SA Opposition that it attacked the subcontracting sector in SA.

Other States and Territories

1.23      Tasmania, Victoria, the Northern Territory and Western Australia have not yet introduced the model bill.

Note on references

1.24      References in this report to the Hansard for the public hearing are to the proof Hansard. Please note that page numbers may vary between the proof and the official transcripts.

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