Western Australia waits a while for national workplace OHS law

The Federal Workplace Health and Safety Act 2011 (the Act) came into effect on 1 January 2012.  The Act provides for the ‘harmonisation’ of OHS laws by providing consistency in the implementation and management of OHS laws between the States and Territories in Australia.

The Act does not require the States to refer their powers over OHS to the Commonwealth.  Instead, the Act provides Model legislation for each State to implement as State legislation.

New South Wales, Australian Capital Territory, Queensland and Northern Territory each adopted the Federal Model as State law from 1 January 2012.  South Australia and Tasmania have formally deferred debate on the implementation of the Federal Model to February/March 2012.

Victoria has informally indicated a possible commencement date of 1 January 2013.  A draft State Bill has been prepared in Western Australia, but the Bill has not been published and made available for comment.

Some of the areas of concern about the Model legislation raised by Western Australia are:

• proposed penalty levels;
  
  
• union right of entry;
  
  
• the capacity of workplace OHS representatives to direct the cessation of work; and
  
  
• the reverse onus of proof in discrimination matters. 

In a recent push for compliance by Western Australia and Victoria, the Federal Government announced that it was considering withholding payments to those States that rebuffed the Federal Model reforms.  It is estimated that these payments are in the millions of dollars.  The Federal Minister for Employment and Workplace Relations, Mr Bill Shorten, said such actions by the Federal Government are reasonable as incompatible State laws are costing Australian business ‘…tens of millions of dollars per week.’

On the other hand, Western Australia’s Minister for Commerce and Small Business, Mr Simon O’Brien, considers the Federal Government’s timetable for change has been unreasonable and holds the position that Western Australia will not be ‘threatened’ by the Federal Government into commencing with the Federal Model until the Federal Government provides information sought about the reforms.   

With this background, the earliest consideration of a possible implementation of the Western Australia Bill will not occur until its next parliamentary sitting which is due at the end of February 2012.

This means that at least for the time being, Western Australia’s OHS Act as it applied in 2011, will continue to apply in Western Australia.  Western Australian businesses however, with interstate operations, will need to have consideration for their dealings in the States that have introduced the Model legislation to date.

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