Consult Australia’s Robin Schuck explains the challenges and opportunities that are emerging as the states adopt the national workplace health and safety laws.

Workplace health and safety (WHS) laws across Australia have undergone something of a revolution over the last few years. Many industry groups, including Consult Australia, have welcomed the shift to a uniform set of national laws. However, as with any adjustment to a new regulatory environment, the transitional period poses a number of challenges.

The first challenge is that each state and territory is taking a different approach to the new legislation. While a clearer picture is emerging of what the final legislative framework will look like, large areas of uncertainty remain as to where each jurisdiction will head next. Second, a greater number of parties now have responsibilities and need to adjust to their new obligations.

The final challenge under the new framework is a lack of clarity as to what a consultant is required to do to meet the legal requirements.

At the time of writing, the new laws have already been passed and implemented in NSW, Queensland, the ACT, the Northern Territory and the Commonwealth. Tasmania has passed the model legislation, with commencement due at the beginning of 2013, while the Western Australian Government has indicated they plan to introduce the model legislation in the 2012-13 financial year. The Victorian Government has announced that they do not plan on joining the national WHS system and the South Australian Parliament is in the midst of debating the model legislation.

If the legislative framework wasn’t complex enough, there is further complication in the process to adopt the codes of practice that provide greater detail about each party’s obligations under the new laws. 

Following an extensive consultation process, each draft code is sent to the Select Council on Workplace Relations (the Ministerial Council, comprising the WHS ministers from each state or territory) for approval. That code then comes into effect individually in each jurisdiction when that state or territory’s regulator formally adopts it. 

As the representative of professional services firms in the built and natural environment sectors, Consult Australia’s focus has been on the ‘safety in design’ codes of practice: The Code of Practice for Safe Design of Structures and the Code of Practice for Safe Design, Import, Manufacture and Supply of Plant. The former of these has been approved by the Ministerial Council, but has not yet been adopted in every jurisdiction, while the latter code of practice is still in its final stages of development.

Consult Australia continues to call for all jurisdictions to adopt the model legislation, as we believe the benefits to business and the economy will outweigh any costs.

While Consult Australia is working with our member firms to support their transition to the new laws, it is important that their clients and others involved in the design process also assist consultants in meeting their obligations. 

Where traditionally obligations simply fell to a designer to ensure that a structure or plant could be safely constructed, used and maintained, the obligations now extend to the full range of participants in the design process, including clients and potentially even property owners. Indeed, the 2011 Work Health and Safety Act now refers to duties residing with ‘persons conducting businesses or undertakings’ relating to the design.

To assist our membership, Consult Australia has developed a guidance toolkit that will help firms to meet their obligations. A feature of the toolkit is a draft letter for consulting firms to send to their clients, explaining how responsibilities for safety in design are shared, and how the cooperation of the client and other stakeholders is essential to manage safety risks.

Where a client does not cooperate, a significant challenge will present itself to consultants as they attempt to meet their obligations and to manage workplace risks. Clients are uniquely placed to liaise between the range of stakeholders who will each have a particular perspective on risks that need to be managed, and how to best manage those risks.

There is also the question of the legal standing of these and other codes of practice developed by Safe Work Australia. Consulting firms require clarity about their obligations so they can develop policies and practices to ensure they meet them, while also providing the safest possible workplaces. 

One example that has been brought to our attention is the requirement under the 'safety in design' codes of practice to develop a safety report. There is little official guidance as to what a safety report should look like, or what standing it will have in legal proceedings. By asking this question on behalf of our industry, Consult Australia has found that answers are largely unknown and will be discovered throughout the transition period, where allowance will be made for new practices with little precedent.

To this end, it is important that regulators acknowledge the challenges faced by firms during the transition period and work with them to help businesses better understand their obligations, rather than taking a hard enforcement line. However, there is also an important role for industry associations such as Consult Australia to assist their membership by providing guidance on how to meet these obligations.

The transition to the new national system of WHS laws will, in the long run, provide industry with a range of benefits, from reduced red tape for compliance, to improved understanding of their obligations. These will, in turn, lead to better safety outcomes. Achieving optimal workplace safety results requires a holistic approach rather than simply ticking boxes on a checklist and requires the input of all stakeholders.

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