Harmonisation – Background
Early attempts to achieve harmonisation
A collaborative and consultative process for developing greater consistency in work health and safety regulations began in the mid 1980s and led to the development of National Standards and National Codes of Practice in a number of key subject areas by the National Occupational Health and Safety Commission (NOHSC). NOHSC was a tripartite body including representatives from Commonwealth, state and territory occupational health and safety (OHS) regulators, industry and unions.
National Standards were developed in consultation with a broad range of stakeholders and went through extensive public consultation periods prior to approval by NOHSC. National Standards did not have legal status and were not enforceable unless a jurisdiction adopted the provisions of the National Standard into their OHS regulations. As there was no binding agreement nationally on how and when National Standards should be adopted, the level of consistency of adoption varied. Some of the reasons for this included:
- differences between the jurisdictional OHS Acts
- differences between legislative drafting protocols and the drafting of the National Standards into regulations, for example, the need for jurisdictions to redraft clauses and definitions to align with the respective OHS laws
- jurisdictions choosing not to adopt all of the provisions of the National Standards, and
- jurisdictions choosing to adopt the National Standard as a Code of Practice rather than as regulation.
Significant improvements in consistency were achieved in the areas of hazardous chemicals, occupational licensing and noise. However, there was less consistent adoption of provisions from other National Standards.
The lack of national consistency of OHS regulations had become the subject of two major reviews—the Industry Commission (1995)1 and the Productivity Commission2 (2004)—and has been raised in a number of others3. The importance of harmonised OHS laws has also been recognised by the Council of Australian Governments (COAG) as part its National Reform Agenda aiming to reduce regulatory burdens and create a seamless national economy.
National Standards were used as a basis for developing the harmonised model work health and safety regulations.
A new process and national commitment
At the Workplace Relations Ministers’ Council (WRMC) meeting on 1 February 2008, Ministers agreed the use of model legislation was the most effective way to achieve harmonisation of work health and safety laws.
In July 2008, the Council of Australian Governments (COAG) signed the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA). The IGA sets out the principles and processes for cooperation between the Commonwealth, states and territories to implement model legislation. It was complemented by consistent approaches to achieve compliance and enforcement by the end of 2011.
This was the first time all jurisdictions had made a formal commitment to harmonise work health and safety laws in Australia within a set timeframe. This commitment included the development and implementation of a complete and fully integrated package. This package consisted of a model Act, supported by model Regulations, model Codes of Practice and a National Compliance and Enforcement Policy.
The IGA recommended a National Review into Model Occupational Health and Safety Laws be conducted to make recommendations on the optimal structure and content of a model Occupational Health and Safety (OHS) Act that was capable of being adopted in all jurisdictions.
The national OHS review was carried out by a panel of three independent experts. In making its recommendations, the panel took into account the changing nature of employment arrangements and consulted extensively with more than 260 individuals. This consultation process incorporated representatives from over 100 organisations across Australia, including regulators, union and employer organisations, industry representatives, legal professionals, academics and health and safety professionals. The panel also received 243 written submissions from various organisations and individuals.
From this process, the national OHS review panel made 232 recommendations, which were put forward to WRMC for consideration. In May 2009, WRMC made decisions on these recommendations, setting the policy parameters for developing a model Act.
To drive the development and implementation of model work health and safety laws, the IGA also required the formation of an independent body, Safe Work Australia.
The results of National Review into Model Occupational Health and Safety Laws can be viewed in these reports:
- National review into model occupational health and safety laws first report
- National review into model occupational health and safety laws second report
- National OHS Review - Submissions
Model Work Health and Safety (WHS) Act
Based on decisions made by the Workplace Relations Ministers’ Council (WRMC), Safe Work Australia released a draft Model Work Health and Safety (WHS) Act, for public comment in September 2009. A total of 480 submissions were received from individuals, unions, businesses, industry associations, governments, academics and community organisations.
The public comment process was a crucial step in forming a comprehensive model WHS Act and it resulted in a number of changes. One of the key changes was the inclusion of a definition for ‘due diligence’.
Ministers endorsed the revised model WHS Act on 11 December 2009 and authorised Safe Work Australia to make any further technical and drafting amendments to ensure its workability. On 29 April 2010, Safe Work Australia Members endorsed the amendments to the model WHS Act and a final version was made available on the Safe Work Australia website.top
Model Work Health and Safety (WHS) Regulations and Codes of Practice
Under the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA), the process for developing the model Work Health and Safety (WHS) Regulations requires Safe Work Australia to consider areas that are the subject of existing regulations. Unless matters are already regulated in a majority of the jurisdictions, they are not included in the model WHS Regulations.
The IGA also sets out the consultation processes for developing the model laws, including that Safe Work Australia release an exposure draft bill and a Regulation Impact Statement for public comment.
The draft model WHS Regulations and first stage Codes of Practice were released for public comment in December 2010 for a period of four months. A total of 1343 submissions were received and reviewed by Safe Work Australia.
Some of the changes made to the draft model WHS Regulations in response to public comment periods include:
- introducing audiometric testing requirements for exposure to hazardous noise to detect hearing loss
- removing the requirement for documenting the use of administrative control measures for the risk of falls above two metres
- revising the hazardous chemicals regulations to rely on the Global Harmonised System of Classification and Labelling of Chemicals published by the United Nations (GHS)
- removing the Regulations dealing with abrasive blasting and placing the requirements in a Code of Practice
- realigning the definition of confined space to the relevant Australian Standard, and
- making a clearer distinction between high risk diving work and other general diving work.
A second stage of model Codes of Practice and an Issues Paper were released for public comment on 26 September 2011 and closed mid December 2011. They include Codes of Practice on first aid, electrical risks, excavation, demolition, fatigue management and workplace bullying.
Safe Work Australia will continue to develop and release model Codes of Practice for public comment into 2012
1 Industry Commission, Work Health and Safety: Inquiry into Occupational Health and Safety, 1995
2 Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks, 2004
3 For example, Taskforce on Reducing Regulatory Burdens on Business, Rethinking Regulation, 2006