South Australia (SA) has entered 2013 with a new safety regime following the January 1 commencement of our version of the harmonised safety laws (WHS Act).
As in New South Wales, the SA Parliament made significant amendments to the model safety laws. Key amendments include:
- Risk management – clarification that a person’s health and safety duty only applies to the extent to which that person has the capacity to control the matter.
- Protection against self-incrimination – an explicit protection to address a concern that the model safety laws would've removed this protection, which currently excuses a person from providing information that may expose them to a penalty.
- Right of entry – amendments placing additional restrictions on the use of permits by union officials address business concerns that right of entry for health and safety purposes has been abused in other States.
- Small business – the Small Business Commissioner may recommend variations to the application of codes of practice on small business.
- Ministerial review – the operation of the national safety laws will be reviewed after its first year and again after three years.
New Regulations (the Regulations) supporting the WHS Act also commenced on 1 January 2013. Of these, those that are the same or similar to an existing regulation will commence immediately.
Where the Regulations are new or significantly modified, various transitional arrangements have been put in place to support businesses, industry and workers as they work towards implementing the WHS Act.
The transition periods, after which the duties under the WHS Act will apply, are as follows:
- Two years for design, installation, construction and commission.
- One year for manufacture, importation, supply, electrical work, hazardous chemicals, noise (audiometric testing) and protective structures.
- One to two years for asbestos requirements.
- Six to 12 months for diving work.
The Regulations have a specific impact on:
- Recognition of records. The Regulations further implement saving provisions that will recognise records, documents, registration, authorisations, permits and licensing regulated under the old OHSW Act. This will require workplaces to keep such items, as they'll be compliant with the WHS Act at the time specified in that item.
- Training for Health and Safety Representatives (HSRs). HSRs who are currently elected and trained may immediately exercise their powers, but by 31 December 2013 they must undertake a one-day bridging course to exercise that power beyond 2013. HSRs in their second year are entitled to three days training plus the bridging day. HSRs in their third year are entitled to two days training plus the bridging day.
- Codes of Practices approved under OHSW. Until national codes are developed, the codes of practice under the OHSW Act will continue.
- Continued recognition of OHS Consultants to assist HSRs.
- Continued recognition of Review Committee members.
Implications for Employers
A review of your current policies and procedures should be undertaken, if you have not already done so, in order to ensure compliance with the new safety laws.
Early decisions from State Courts during 2013 and beyond can be expected to provide important guidance of the new safety laws. Employers will, in particular, be keenly awaiting decisions that define the scope of a PCBU's (Person Conducting a Business or Undertaking) primary duty of care. Individuals who are decision makers will be awaiting decisions that determine who is an "officer" in the context of the new safety laws.
Officers, managers and other employers will need to continue to be updated about developments regarding the new safety laws, including important decisions from the Courts.
DW Fox Tucker will continue to keep you informed of developments.
