WHS – an imperfect harmony?

Last week the Queensland Government signalled potential changes to its model WHS Law, including the possible introduction of higher penalties and additional criminal offences for individuals. This, along with recent changes in State and Territory governments, poses the question – when do the model WHS Laws become "un-harmonised"?
 
By 1 January 2013 the Commonwealth and all Australian States and Territories, excluding Western Australia and Victoria, had enacted the model provision of the WHS Law. Since then, what first appeared to be minor "jurisdictional" changes have emerged as larger issues. These differences can create compliance headaches for nationally operating Persons Conducting a Business or Undertaking.
 
For example:
  • Inconsistency in sentencing has emerged, as Courts ranging from the Queensland Magistrates Court to the NSW Court of Criminal Appeal, undertake the process of sentencing.
  • Regulators have different powers, particularly in requiring answers to questions. Comcare has a "derivate use" provision, making evidence obtained as an indirect consequence of compelling answers inadmissible against individuals, and SafeWork SA cannot compel answers at all where an individual claims a protection from self-incrimination.
  • Different Codes of Practice are being followed, with SafeWork NSW preserving 20 "pre-WHS" Codes of Practice, in addition to adopting the Model Codes of Practice published by SafeWork Australia.

KEY TAKE OUTS

  • Persons Conducting a Business or Undertaking must keep a diligent eye out for minor, but potentially significant, jurisdictional variations.
  • National harmonisation of WHS Laws may start to become a distant memory as changes in Governments continue to occur across the country.
Tom Reaburn

More than a safe set of hands. What matters to our clients is what matters to me.

Tom Reaburn Senior Associate

Tom is a workplace relations expert who specialises in work health and safety and employment litigation.

Tom is passionate about Work Health and Safety Law. As a previous work health and safety investigator at the Commonwealth WHS regulator, Comcare, Tom provides his clients with a uniquely practical perspective on WHS compliance. His clients rely on him to provide pragmatic advice to ensure that their businesses, and their officers, are complying with the WHS Laws. Tom is often called upon to attend sites after serious incidents and provide immediate assistance and advice.

Tom also advises and litigates across all "dual regulation" health and safety regimes, including rail, mining, aviation and marine. He also acts for his clients in coronial inquests arising from workplace deaths.

In addition to his WHS practice, Tom is an experienced employment litigator, advising and advocating in a variety of State and Federal jurisdictions. He regularly appears before the Fair Work Commission, Australian Human Rights Commission, Industrial Relations Commission of NSW and various other state and Federal courts.

Tom has recently completed secondments at the Westpac Banking Corporation and NSW Police Force, specialising in employment litigation.

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