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The time has come to go back to square one and create a consistent WHS model law that will be adopted in full by all states and territories, writes Carlie Holt.
It has been 13 years since SafeWork Australia, the statutory authority tasked with harmonising work health and safety (WHS) laws, developed and released its model laws to create a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. This was welcomed with open arms by almost all organisations in Australia, and certainly every business that had a presence in multiple states.
Sadly, these model laws have been under subtle attack by the states and territories, which have been chipping away at the consistency of these laws to the extent that there are now increasingly different laws and penalties between states and territories.
This constant tinkering – some in line with changes of government – has completely eroded those initial attempts at harmonised WHS laws in Australia.
In an increasingly interconnected world in which Australian and international businesses work across multiple or all states and territories in Australia, having inconsistent WHS laws is potentially placing workers at risk in the workplace and organisations and their officers at risk in the boardroom.
There are numerous examples of WHS laws that differ from state to state.
In the ACT, businesses must notify WorkSafe ACT of an actual or suspected sexual assault incident. This is not a requirement in any other state or territory. For a national organisation, this means suspected assaults need to be reported in one corner of the business but are not necessary to be reported in the rest of the organisation.
In NSW, the proposed maximum penalty of 25 years imprisonment for individuals guilty of industrial manslaughter (yet to commence) is higher than the model laws’ suggested penalty of 20 years imprisonment.
In Queensland, enforceable undertakings – a legally binding written commitment given by a person conducting a business or undertaking to implement effective health and safety projects – are not available to offences that involve a fatality. Similarly, in the Northern Territory, an enforceable undertaking cannot be accepted in respect of an industrial manslaughter offence. However, NSW has just permitted an enforceable undertaking following a fatality.
Such anomalies make it more difficult for smaller businesses to get across the differences in the legislation and for all organisations to provide consistent instruction and training about the safety standards they expect of workers and managers.
While ignorance of the law is not a reasonable excuse for breaching the law, it is not unreasonable to deduce that the inconsistency in laws does make it more likely that businesses may inadvertently miss a particular requirement of a state or territory.
It also seems peculiar that each Australian jurisdiction, including the Commonwealth, has different fines and jail sentences for each offence, thus sending an unfortunate message that one state has a greater tolerance for more unsafe behaviour than another.
The time has come to go back to square one and create a consistent WHS model law that will be adopted in full by all states and territories. There needs to be consistent safety laws in all Australian workplaces, clarity about what needs to be reported and when, and consistency with penalties for breaching these laws.
The current laws encourage inconsistency of safety processes and programs within the same organisation and place different values through the penalties on breaches. This is unacceptable.
Truly harmonised WHS laws would make it easier for businesses to follow the laws and create no excuses for failing to create safe workplaces for everyone.
Carlie Holt is a partner on the work health and safety team at global law firm Pinsent Masons.
