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Pros and cons of WHS harmonisation

This article originally appeared on WorkplaceOHS. (18/11/11)

The true impact on businesses across Australia of the harmonised Work Health and Safety (WHS) laws – as well as some last-minute advice on preparing for the 1 January 2012 commencement date – was explored at a recent legal seminar in Sydney.

At the seminar held by Carroll & O’Dea Lawyers on Thursday, 17 November, senior associate Janine Smith provided an overview of the ‘pros’ and ‘cons’ of the new WHS regime (Act, Regulations and Codes of Practice) for business.
 

Pros

  • A lengthy lead-in period, and OHS regulators across Australia have published resource materials to ensure awareness and uptake.
  • Reduced compliance costs for national businesses, not-for-profit organisations or even businesses operating in two or three states.
  • Eventually organisations should be able to implement national policies and procedures applying to all staff in all premises Australia-wide.
  • Greater certainty as to content of workplace safety duties.
  • Greater certainty as to legal outcomes. ‘In theory’, there will be a ‘more level playing field’ and that the same offence occurring in different states ‘should’ result in the same or similar outcomes, ‘but in practice …?’ 

Cons

  • Lack of true national harmonisation due to delayed starts by some states (namely, Western Australia and Victoria having indicated that the intended national commencement date of 1 January 2012 is not attainable and that further time in needed to assess their full impact).
  • In some states, the legislation will not be identical (eg Western Australia is unlikely to adopt all the model WHS laws when it joins the harmonised system).
  • Single-state persons conducting a business or undertaking (PCBUs) are likely to incur some costs in adapting to the new regime but likely to gain little benefit (Access Economics).
  • There is no national WHS regulator and concern remains around likely jurisdictional inconsistencies arising from the new regime being implemented and enforced by the nine local regulators, as well as the various prosecuting authorities and courts. For example, Comcare and WorkCover NSW have followed very different enforcement strategies, and the content of the duties in New South Wales and other states has been very different historically.

Smith said that another consequence of the WHS laws for businesses in New South Wales, was that they may experience less prosecutorial activity during the early stages (WorkCover NSW was previously an active and frequent prosecutor). She added that it also remained to be seen whether the new regime would actually contribute towards reducing workplace illness and injury statistics, despite the fact that it emphasises the utmost importance of workplace safety.
 

Prepare now

She advised businesses to prepare for 1 January 2012 by auditing their OHS systems ‘now’. This involves:

  • reviewing policies and contracts
  • checking corporate governance arrangements
  • identifying their PCBUs and officers
  • giving effect to the Act’s mandatory consultation provisions
  • arranging to consult with staff, contractors, volunteers and others
  • conducting information and training sessions and updating policies where appropriate.


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