The discussion paper on the model Work Health and Safety Regulations (model WHS Regulations) for Western Australia (WA) was released on 1 June 2016. The public comment period is now open and ends on 31 August 2016.
The Workplace Health and Safety Bill 2014 was introduced into Parliament as a ‘green bill’ and provides the overarching duties of workplace participants in relation to health and safety in the workplace with detailed requirements in relation to specific hazards which are provided for in the WHS Regulations. This is similar to the process currently applying in the Occupational Safety and Health Act 1984 and regulations.
The process of modernising WA’s WHS laws has Cabinet approval and the publically announced likely commencement date is still 1 January, 2017. It seems unlikely this date will be met unless the green bill and the associated Resources WHS bill are given priority in the August sittings of the WA Parliament. Based on discussions we have had with Worksafe, it does not know if the bills will be given this priority.
This discussion paper
The process used by Worksafe in preparing the discussion paper is to review the model WHS Regulations for adoption in WA. The key principles adopted were: is to make the regulations more suitable for adoption in the WA working environment; to minimise prescription; and to keep the burden of compliance at an acceptable level. Following its review, WorkSafe has developed recommendations to adapt the model WHS Regulations to suit WA.
Submissions are invited from parties interested in work health and safety using the cover sheet and template provided on the Department of Commerce website Work Health and Safety Regulations Discussion Paper.
Worksafe is seeking comments on all aspects of the proposed changes to the regulations, but particular comment is sought on:
- Asbestos – additional obligations are to be imposed in relation to certification of safety management systems, required licensing and training for removal of asbestos and inspections and registers of asbestos. A new requirement will be introduced to require health records to be given to employees as they cease employment and air contamination records will still need to be given to workers as soon as they are available. These changes will be relevant to all employers with asbestos on their sites.
- Diving work – the requirement to follow AS/NZS 2299:1: 2007 Occupational Diving Operations-Standard Operational Practices for all types of diving work. These changes will be of particular relevance to diving companies, petroleum and shipping businesses.
- Electrical work – the model WHS Regulations are broadly compatible with the package of safety reforms announced by the Minister for Commerce for electrical work that will :
- prohibit work on energised electrical installations with specified exceptions; and
- require the main switch to be de-energised while work is undertaken in a roof space.
- Plant registration – this will involve removing the requirement for individual plant to be registered, but retaining the requirement for design registration. This change is likely to be a positive for businesses using registered plant.
If you prepare submissions you may request that they are kept confidential, but if they are not received as confidential, then they may be posted upon Worksafe’s website.
Overview of changes to the model WHS Regulations
The discussion paper for the model WHS Regulations identifies 138 recommended changes, broadly they propose:
- References to Australian standards will be minimised and instead detailed requirements for work health and safety will be provided for in the model codes of practice.
- Management of work including confined spaces, hazardous chemicals and falling objects will not be addressed in the model WHS Regulations, as the specific control measures are set out in the relevant model codes of practice.
- Specific references to dangerous goods and mining will be excluded in the model WHS Regulations as they are regulated in WA under separate legislation.
- Major hazard facilities will not be included in the model WHS Regulations as they are part of the proposed reforms to legislation administered by the Department of Mines and Petroleum.
- Consistent with the green bill, the provisions relating to enforceable undertakings are being removed as enforceable undertakings will not be an option in WA as the regulators do not have capacity to enforce them.
- Tilt-up concrete work will incorporate the current OSH Regulations for employee training with some changes including requiring supervisors to be trained where concrete panels are manufactured at workplaces other than construction sites.
- The current approach towards the regulation of asbestos and diving work in WA will remain largely the same, with changes to the model WHS Regulations to align to the current WA arrangements such as notification to regulators being required at 0.05 fibre/ml.
- Changes that are particular to construction and demolition will be made such as not notifying Worksafe of demolition work and the retention of the requirement for a Principal Contractor to be appointed for construction works where there are more than 5 people on the site rather than the $250,000 contract value threshold are also proposed.
- More stringent requirements for High Risk Work Licence (HRWL) assessors, a preferred option being to restrict HRWL assessments so they can only be performed in WA by accredited assessors. Registered training organisations (RTOs) will be required to retain records in relation to an assessment of a HRWL.
- Adding a number of current OSH Regulations to the new regulations that do not appear in the national model Regulations, including the prohibition of tobacco smoke in workplaces and provisions for commercial vehicle drivers.
- Not incorporating some provisions unique to the OSH Regulations – including requirements for abrasive blasting and spray painting booths.
In releasing the discussion paper, Worksafe WA Commissioner Lex McCulloch said:
“Where evidence has not been provided that new requirements will improve safety and health outcomes in Western Australia, those provisions have been amended to more closely align with the current requirements of the [State] OSH Act and the OSH Regulations.”
The discussion paper says it is likely that WA will modify the model WHS Codes of Practice and other guidance material before adopting them.
WorkSafe will analyse all submissions on the discussion paper and make any “necessary” modifications and report to the Minister. If the Government agrees to making changes that increase costs, the Regulatory Gate Keeping Unit of the Department of Finance may require a further regulatory impact statement.
“After these processes are completed and any necessary Cabinet approval is obtained, the new laws will be introduced into Parliament for consideration and passage.”
“Regulations based on the new laws will not be in effect until the new Act is passed and proclaimed, and any necessary interim Regulations will be introduced only after a full consultation process.” Lex McColloch said.
What employers need to do
If you operate businesses in Western Australia that come under the Occupational Safety and Health Act 1984, you should consider the discussion paper and consider the likely impact of the proposed Regulations on your business. If you are concerned by the impact you should make submissions in response to the discussion paper, as it is not clear you will get any other opportunities to make submissions. If you require assistance in preparing the submissions, we can help you.
This article is written by Sarah Harrison, Partner and Desiree Dyer, Solicitor.