In the second half of 2011, in keeping with the ACT's commitment to the national harmonisation of health and safety laws, the Legislative Assembly passed a new Work Health and Safety Act 2011. The new Act replaced the previous Work Safety Act 2008 on 1 January 2012. The Work Safety Act 2008 therefore ceased to have effect from midnight on 31 December 2011.
Click here for a Guide to the Work Health and Safety Act from Safe Work Australia.
As with the Work Safety Act 2008, the new legislative regime comprises 3 formal elements with a fourth, non-legislative element sitting below that. These are:
The Act sets out the overall framework for work safety and a range of duties designed to ensure work health and safety.
The Regulation spells out minimum standards for the duty holders to ensure work safety in relation to specific hazards and risks (such as the performance of manual tasks). Regulations have the force of law and MUST be adhered to. Failure to comply may result in a criminal penalty or an infringement notice.
Codes of Practice provide practical guidance on how to comply with legal duties. Codes have formal status, allowing courts to consider whether a Code has been complied with in deciding whether legal duties have been met. The steps set out in a Code are not compulsory, but you should follow the Code or an equivalent [or better] alternative.
National Standards and National Codes of Practice are developed by Safe Work Australia and its predecessors (NOHSC, ASCC). Once adopted in each jurisdiction, they are then legally enforceable. Australian Standards are separate technical guides which may also assist a person to comply with a particular work safety duty.
The Work Health and Safety Act 2011 has brought health and safety laws in the ACT into harmony with similar legislation adopted by most of the other Australian states and territories. This harmonisation process has significantly narrowed the differences in work health and safety legislation across borders within Australia.
Key features of the new legislation include:
The new legislation also introduces some new terminology, including:
Part 20 of the Work Health and Safety Act 2011 contains a number of transitional provisions which will ease the move from the Work Safety Act 2008 to the new Act.
In particular, the Act provides that:
This means that there is no need for businesses to hold new elections, for example, for HSRs or to reorganise their consultative arrangements as a result of the new legislation coming into effect.
Section 2 of the Work Health and Safety Regulation 2011 also provides for transitional arrangements including:
In line with action taken by Workcover NSW, WorkSafe ACT has provided a further transition, until 1 January 2013 [i.e. for 12 months], with conditions [see immediately below], for a person with management or control of the following earthmoving machinery from the requirments of section 217 of the Work Health and Safety Regulation 2011:
This exemption is subject to the following conditions:
Below the principal Act sit regulations, which provide further details regarding obligations in respect of a range of specific matters. Under the Work Health and Safety Act 2011, all regulations are brought together into one single regulation - the Work Health and Safety Regulation 2011. Most elements of the new regulation take effect from 1 January 2012, although some aspects will have a delayed date of effect to enable businesses to transition to the new provisions.
Matters covered in the Work Health and Safety Regulation 2011 include:
Safe Work Australia, through the national harmonisation of health and safety process, have developed a useful Guide to the regulations which can be found on their website.
Other current relevant Acts and their associated regulations are listed below. The Scaffolding and Lifts Act 1912 and the Machinery Act 1949 are expected to be repealed early in 2012, as most of the provisions in that legislation are now provided for in the new WHS Act.
Approved Codes of Practice
A relevant Code of Practice is admissible as evidence in any court proceeding under the Act or the Regulations. A court may have regard to a Code of Practice as evidence about what is known about a particular hazard or risk, risk assessment or risk control. A court may also rely on the Code of Practice in determining what is reasonably practicable in the circumstances to which the Code of Practice relates.
Evidence of compliance with the Work Health and Safety Act 2011 or the Work Health and Safety Regulation 2011 by another method which provides an equivalent or higher standard of work health and safety than the standard in the Code of Practice can also be introduced in court proceedings.
Codes of Practice are designed to be used in conjunction with the Act and the Regulation but do not have the same legal implications. A person cannot be prosecuted for failing to comply with a Code of Practice.
An inspector may refer to an approved Code of Practice when issuing an improvement or prohibition notice and may offer the person to whom the notice is issued a choice of ways in which to remedy the contravention.
Approved Codes of Practice offer practical examples of good practice. They give advice on how to comply with the law by, for example, providing a guide to what is ‘reasonably practicable’ in particular circumstances. For example, if regulations use words like ‘suitable and sufficient’, an Approved Code of Practice can illustrate what this requires in relation to a specific kind of activity, such as providing first aid facilities for workers, or in respect of smoking in the workplace.
Click here for a list of the Approved Codes of Practice for the ACT and access to their content.
In the absence of reference to specific requirements in regulations or codes of practice, courts will often have regard to relevant industry standards.
WorkSafe ACT will work with local consultative forums to develop industry standards applicable to work safety in the ACT. Access to such standards will be provided here.
WorkSafe ACT publishes guidance on a range of health and safety subjects.
Guidance can be specific to the health and safety problems of an industry, or to a particular process used in a number of industries, or to a hazard or process which may be common across several or all industries.
Guidance Material is not law, though it can help explain the law. The main purposes of guidance are:
Following guidance is not compulsory and employers are free to take other action. In many cases, however, if they do follow the guidance provided they will be doing enough to comply with the law.
Click here to view a list of all of the publications currently available.
Resources and Fact Sheets
The following resources are available from Safe Work Australia covering various aspects of the new legsilation:
WorkSafe has also developed a new form for Incident Notification after 1 January 2012:
Infringement Notices [or "on-the-spot" fines]
The following is a list of Infringment Notices available to WorkSafe ACT in respect of the Work Health and Safety Act and Regulations.
List of Infringment Notices or on-the-spot fines.
These are also listed in the ACT in the Magistrates Court (Work Health and Safety Infringment Notices) Regulation 2011.
Click here to find out more about enforceable undertakings under the WHS Act 2011.
What training or information sessions are available about the legislation?
A series of public information sessions about the legislation are scheduled to be provided by this office in the coming months.
Click here for more information regarding these sessions.
Safe Work Australia
Safe Work Australia will continue to provide a range of guidance and support material relating to the harmonisation of work health and safety laws across Australia.
Go to their website for further information.
Feedback and/or suggestions for additional information
Should you feel that there is some aspect of the changes to the Act and/or the supporting legislation that is not covered adequately here, or should you simply have a comment to make about the above information, please contact WorkSafe ACT.
In August 2008 the Legislative Assembly passed the Work Safety Act 2008. This Act ceased to have effect from midnight on 31 December 2011.
The Work Safety Act 2008 replaced the previous Occupational Health and Safety Act 1989 on 1 October 2009. The Occupational Health and Safety Act 1989 ceased to have effect from midnight on 30 September 2009.
The Work Safety Regulation 2009 was passed as subordinate legislation to the Work Safety Act 2008. The Work Safety Regulation 2009 also cease to have effect from midnight on 31 December 2011..