The Restoration of Workplace Health and Safety in Australia: The Model WHS laws
Health and Safety Law in Australia
The "Robens Model" was introduced to Australia in the 1970s as the basis of occupational health and safety law in Australia thereafter. [Note 1] Each of the Australian jurisdictions enacted new statutes for work health and safety based on the 1972 Robens Report and accompanying health and safety model. The New South Wales government did so in 1983.
However, by the mid-1980s, law cases and industry changes brought about changes to the laws of each jurisdiction. A breakaway occurred by all Australian jurisdictions to develop their own OHS law separately, beginning with Western Australia (1984), South Australia (1986), the Commonwealth (1991), Queensland and Tasmania (1995), New South Wales (2000), Victoria (2004), Northern Territory (2007), and finally the Australian Capital Territory (2008). As a consequence of their development at different times in different political, industry and union-interest contexts, the OHS Acts of each jurisdiction differed considerably in detail, as did the regulations and codes of practice made under them. Further amendments were made, many socio-politically motivated, thus creating even more legislative disparities across the states and territories. [Note 2]
Reason for the Model WHS Laws
The Model WHS Laws, introduced in 2011, were meant to be a clean sweep of health and safety principles and practices, by reintroducing the Robens Model which in some instances had been largely deviated from.
Changes and amendments to the New South Wales OHS Act over time had resulted in gradual eroding of accountability. For example:
Under the OHS Act, an "officer" only meant a WorkCover inspector.
OHS committees were given functions that actually belonged to employers and senior managers, elevating the role of an HSC as pseudo-management body instead of a consultative bridge between management and workers.
Lost was the concept and applicability of worker representation by health and safety representatives, instead elevating “health and safety committees” to the degree that they in effect erased and replaced HSRs in New South Wales. [Note 3]
Additionally, HSRs (if they even existed) were not able to issue Personal Improvement Notices, only a WorkCover inspector could do that.
The Model WHS laws were an effort to harmonise OHS laws in Australia. The Victorian government chose not to change to the Model Laws because they perceived their own OHS framework as being already in adherence to the Robens Model, and therefore why would they need to change? Additionally, many OHS legislative changes made by other states before harmonisation were derived from or motivated by Victorian initiatives. [Note 4]
Restoration of accountability
Accountability was restored in the Model Laws by establishing specific WHS duty holders with specific WHS duties that could not be delegated by the duty holder. For the first time, business owners and company directors were identified as "officers" and were given specific "due diligence" duties.
The PCBU (formerly "employer") properly became the senior duty holder with the overall responsibility (primary duty) for health and safety of the workplace.
Officers, as defined in the Corporation Act 2001, were given specific duties to perform to ensure the PCBUs duties were met.
Workers were tasked with WHS responsibilities to themselves and to the people they work with.
Workgroups did not exist under the old OHS Act. Workgroups for consultation were reintroduced in the WHS Act and Health and Safety Representatives were reestablished as the recommended method for workplace consultation between management and the workforce, exactly as the Robens Model.
The role of a health and safety committee was simplified to becoming a resource for management to develop WHS policies and long-term programs for the workplace as a whole. [Note 5]
The new WHS laws repaired situations where the "square pegs" of the former OHS legislation no longer fitted in the "round holes" of the Model laws.
Since 2011 New South Wales has enacted the Model WHS Act and Model WHS Regulation. With the exception of Victoria (who saw no reason to change) all States and Territories operate und the Model WHS laws and a return to the Robens Model that for so many years had been deviated from.
For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066
References
The Robens Model was derived from a report published in the UK in 1972 by Lord Alfred Robens proposing changes to the UK Occupational Safety and Health system which was perceived to be overly regulatory. Up until the 1970s Australian health and safety law was mostly derived from the 19th century British health and safety legislation (particularly the 1878 Factories Act, and later the 1901 Act.) The "Robens Model" was thereafter adopted in Australia. By the 2000s local amendments of OHS laws over the years had resulted in departures from the Robens Model and disparities between jurisdictions.
Socio-Political Context: OHS Law and Regulation in Australia, by Elizabeth Bluff. First published in 2012 by the Safety Institute of Australia Ltd, Tullamarine, Victoria, Australia. https://www.ohsbok.org.au/wp-content/uploads/2013/12/8-Sociopolitical-OHS-law-in-Australia.pdf
Section 18 Functions of OHS committees and OHS representatives (Page 11), New South Wales OHS Act 2000 (repealed). https://legislation.nsw.gov.au/view/html/inforce/current/act-2000-040
Comparison of Occupational Health and Safety Arrangements in Australia and New Zealand (2008) Published by Safe Work Australia (Pages 44-76) https://www.safeworkaustralia.gov.au/system/files/documents/1702/comparisonofohs_aus_nz_5thed.pdf
Work Health and Safety Law and Policy, 3rd edition, by Richard Johnstone, Liz Bluff & Alan Clayton. Published by Thomson Reuters, May 2012. ISBN 9780455229836 https://www.boffinsbooks.com.au/books/9780455229836/work-health-and-safety-law-and-policy (required reading for current Diploma of WHS certificate.)
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