Victoria elects not to follow the National Worksafety laws

Without any fanfare and very little press reaction, the Victorian Premier, Ted Baillieu announced on 12th of April that Victoria would not be proceeding with the adoption of the model Workplace Health and Safety put forward by the Federal Government.

Their decision was made following the release of a PwC report which found that the cost of implementing the new WHS legislation would be more than $3 billion over 5 years, with the majority of the cost borne by small businesses.

Mr Baillieu claimed that in addition, Victoria currently had the best health and safety system in Australia, and he did not want to lower standards while imposing extra costs.

As I understand it, much of the Federal Model was based on the existing Victorian legislation.

The PwC report predicts that the main reason for the anticipated costs to small business would come from:

  1. the changes to the definitions of confined spaces and “fall from height” (removal of the 2
    metre threshold);
  2. the change in definition of a worker;
  3. the extra due diligence requirements imposed on officers; and
  4. the requirement to establish emergency plans and test them.

The only areas where PwC predicted a positive impact from the proposed laws was in the introduction of the “consult, co-operate, and co-ordinate” requirements for Persons Conducting a Business or Undertaking (“PCBU”),  formerly known as the employer, the extra training required before health and safety representatives could issue notices to stop work or fix problems, and electrical safety in hostile environments.

Whether the Baillieu Government has done the right thing by Victorian business I am simply do not know. I certainly do not like what they have done on ripping out $450 million from Worksafe Victoria and their transition on Fire Service Levies (both subject to different postings.)

Some states have already signed up to the national Workplace Health and  Safety system. Those that have signed up are the Commonwealth, NSW, Queensland, ACT, and NT. All of these  passed the new Workplace Healthy Safety legislation making it law from 1st January 2012.

There are some exemptions to complete harmonisation. In New South Wales, their WHS Act does not apply to mines. Queensland was an enthusiastic early adopter of the uniform laws,
with extensive transitional arrangements.

The change in Queensland Government a few weeks back is unlikely to result in a reversion to their previous system. Mining and electrical safety are not covered by the new legislation.

With regards to the other states, the Western Australian Government has drafted the WHS legislation as it applies to non-mining employers, with departures from the uniform legislation
in the following areas:

  • penalty levels;
  • union rights of entry;
  • right of health and safety representatives to stop work,
  • and the reverse onus of proof in discrimination matters.

The timing of the bill into Western Australia parliament, while expected in 2012, will depend on finalising the associated bill which will apply to the mining industry which of course is so very important to the WA economy.

In South Australia, while the uniform WHS legislation was introduced into the SA parliament
in 2011, the Government did not have the numbers for it to pass in the Upper House, and the decision was adjourned until the next sitting of parliament in February 2012. The bill still has not been passed.

In Tasmania has passed the new legislation which is scheduled to commence
on 1 January 2013.

Eleven of the new Codes of Practice, which flesh out the requirements in the uniform legislation and regulations, have been released by SafeWork Australia and adopted by the “uniform” States and Territories.

Twelve more Codes (including First Aid and Construction) are awaiting endorsement, and five more draft Codes have been released for a 12 –week consultation period.

The penalties which are much greater than ever before and really should be of concern to SME owners are.:

New penalties under Harmonised WHS Legislation

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