WHS Law: “Everything old is new again”

Weekly WHS Article 22nd June 2023

When the Model WHS laws commenced in Australia in 2012 it brought to Australia a new and updated look at workplace health and safety and a return to the “Robens Model” (see Note 1) that was the basis of health and safety law in Australia in the 1970s to the 1980s (see Note 2). “Everything old is new again”.

Lord Robens’ Report in 1972 (see Note 1) proposed modifications of the regulatory model, and made recommendations that were based on two principal objectives:

1) “… the creation of a more unified and integrated system” (Robens’ Report, para 41).

For Australia this would involve harmonising all state legislation on work health and safety into one umbrella statute containing broad “general duties” covering a range of parties affecting workplace health and safety, including employers, the self-employed, occupiers, designers, manufacturers and suppliers of plant and substances and employees. The skeleton statutory general duties were to be “fleshed out” with standards in regulations and codes of practice. A unified health and safety inspectorate were to have new administrative sanctions (improvement and prohibition notices) to supplement prosecution. Prosecutions were to be brought against corporate officers, as well as against the corporate employer.

2) “…a more effectively self-regulating system” (Robens Report, para 41).

This was proposed to be a system of self-regulation involving workers and management, at workplace level, working together to achieve, and improve upon, the health and safety standards prescribed by the state. The most important element in the Robens’ model of self- regulation was that:

“…there should be a statutory duty on every employer to consult with … employees or their representatives at the workplace on measures for promoting safety and health at work, and to provide for the participation of employees in the development of such measures” (Robens Report, para 70).

The principal vehicle for employee representation was to be the health and safety representative, who was, in the pure Robens model, to be consulted by employers. “Health and safety committees” were also an option to include other employees as well as HSRs.

The Robens model envisaged greater cooperation between the health and safety inspectorate and employee representatives, an obligation upon employers to develop health and safety policies and procedures, and a requirement for Boards of Directors to lodge prescribed information with corporate regulators.

Each of the Australian jurisdictions enacted new statutes for work health and safety based on the 1972 Robens Report and proposed health and safety model. NSW did so in 1983. However, by the mid-1980s law cases, and industry changes brought about changes to the laws of each jurisdiction and in some instances deviations from the Robens model. For example, NSW eventually strayed from the concept of worker representation by health and safety representatives, instead elevating “health and safety committees” to the degree that they unofficially replaced HSRs. This deviation persisted through subsequent revisions of the NSW OHS Act until the adoption of harmonised Model WHS laws which had been discussed since the 2000s and came into being on 1 January 2012.

Victoria is the only State that did not adopt the Model WHS laws, having put forth the argument that their OHS legislation was the least altered from the Robens model and almost identical to the new Model laws.

The Model WHS laws have restored the Robens model and re-established worker representation through consultation work groups and health and safety representatives to represent the people in those groups.

A PCBU must consult all staff about health and safety matters that may affect them and having consultation work groups and HSRs is one way a PCBU can achieve that. If a business needs or wants to formalize its consultation processes in this way, the WHS Act and WHS Regulation describe clearly how this can be achieved.

For more information please see here: https://regnet.anu.edu.au/research/centres/national-

research-centre-ohs-regulation-nrcohsr/overview-work-health-and-safety-regulation-australia

For more information, 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

Note

1.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.

2. 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.)

22nd June 2023

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