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Safe Work Australia Amendment (Role and Functions) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

SAFE WORK AUSTRALIA AMENDMENT (ROLE AND FUNCTIONS) BILL 2017

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Senator the Hon Michaelia Cash)





OUTLINE

SAFE WORK AUSTRALIA AMENDMENT (ROLE AND FUNCTIONS) BILL 2017

The Safe Work Australia Amendment (Role and Functions) Bill 2017 (the Bill) implements the recommendations of the Review of Safe Work Australia’s Role and Functions (The Review). The Review was required to start 6 years after the commencement of the Safe Work Australia Act 2008 (SWA Act) and was tabled in Parliament on 8 November 2016.

 

For more than 30 years Australia has had a national tripartite body overseeing work health and safety (WHS). The most recent of these bodies, Safe Work Australia (SWA), was established in 2008 as an independent statutory body by the SWA Act to lead the development of national improvements in WHS outcomes and workers compensation arrangements across Australia. SWA is an inclusive body representing the interests of the Commonwealth, the States and Territories as well as workers and employers in Australia.

 

The Review found there is strong support for SWA’s current role and functions and consensus among stakeholders that SWA plays a crucial role in leading the development of national policy by bringing together stakeholder groups. The Review however, made a number of recommendations to further clarify SWA’s role and update its functions to suit changed circumstances, allow SWA to address emerging WHS issues, and to ensure its functions remain current into the future.

 

Consistent with the Review’s recommendations the Bill amends the SWA Act to:

·          include an overarching statement that provides a context in which SWA is to continue to perform its functions and lead the development of national polices and strategies to improve WHS outcomes and workers’ compensation arrangements; and

·          update, consolidate and simplify SWA’s functions.

The Bill also:

·          replaces outdated terms such as ‘occupational health and safety’ and ‘Ministerial Council’; and

·          clarifies that WHS ministers will continue to approve the model WHS legislative framework and other key documents.

 

 

 

 

 

 



FINANCIAL IMPACT STATEMENT

 

N/A



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Safe Work Australia Amendment (Role and Functions) Bill 2017

The Safe Work Australia Amendment (Role and Functions) Bill 2017 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Safe Work Australia Amendment (Role and Functions) Bill 2017 (the Bill) implements the recommendations of the Review of Safe Work Australia’s Role and Functions (The Review). The Review was required to start 6 years after the commencement of the Safe Work Australia Act 2008 (SWA Act) and was tabled in Parliament on 8 November 2016. Its key recommendations are to further clarify SWA’s role and update its functions to suit changed circumstances, allow SWA to address emerging work health and safety (WHS) issues, and to ensure its functions remain current into the future

 

For more than 30 years Australia has had a national tripartite body addressing WHS. The most recent of these bodies, Safe Work Australia (SWA), was established in 2008 as an independent statutory body by the SWA Act to lead the development of national improvements in WHS outcomes and workers’ compensation arrangements across Australia. SWA is an inclusive body representing the interests of the Commonwealth, the States and Territories as well as workers and employers in Australia.

 

Article 7 of the International Covenant on Economic, Social and Cultural Rights provides that everyone has the right to the ‘enjoyment of just and favourable conditions of work, which ensure, in particular…[s]afe and healthy working conditions’. Australia principally complies with its obligation under Article 7(b) of the ICESCR through a system of Commonwealth, State and Territory work health and safety laws, which have been harmonised across the majority of jurisdictions through the adoption of model laws developed by SWA.

SWA further supports compliance with Article 7 by providing a strong framework for tripartite engagement on national WHS policy, including the development of model WHS laws and the national WHS strategy. The importance of tripartite engagement is reflected in International Labour Organization Convention 155 which requires state parties to demonstrate that representatives of workers and business are actively engaged in the development of WHS policy. [1]

The Bill engages the right to safe and healthy working conditions by making necessary amendments to the legislation that establishes and governs SWA. It will ensure that SWA is positioned to address emerging WHS issues and that its functions remain current into the future.

                                           

Conclusion

The Bill is compatible with human rights.

Minister for Employment, Senator the Hon Michaelia Cash

 

 





NOTES ON CLAUSES

In these notes on clauses, the following abbreviations are used:

the Australian Strategy

Australian Work Health and Safety Strategy 2012-2022

the Bill

Safe Work Australia Amendment (Role and Functions) Bill 2017

model WHS laws

The model Work Health and Safety Act and model Work Health and Safety Regulations developed by SWA

the Review

Review of Safe Work Australia’s Role and Functions

SWA

Safe Work Australia

SWA Act

Safe Work Australia Act 2008

WHS Act

Work Health Safety Act 2011

 

Clause 1 - Short title

1.            Clause 1 provides for the short title of the Act to be the Safe Work Australia Amendment (Role and Functions) Act 2017 .

Clause 2 - Commencement

2.            Clause 2 provides that the Act commences on the day after it receives Royal Assent.

Clause 3 - Schedules

3.            Clause 3 is a mechanical provision. It provides that legislation that is specified in a Schedule is amended or repealed as set out in the Schedule, and any other item in a Schedule has effect according to its terms.





 

SCHEDULE 1 - AMENDMENTS

Part 1 - Main amendments

Safe Work Australia Act 2008

Items 1 and 2 - updates to overview in Section 3

4.       Item 1 repeals and replaces the first paragraph of the overview in section 3 of the SWA Act. The Bill replaces references to ‘occupational health and safety’ with ‘work health and safety’, which is a more commonly used term and consistent with the language used in the model WHS legislative framework (see also Items 5 and 6).

 

5.       Item 2 repeals and replaces the third and fourth paragraphs of the overview in section 3. The new paragraphs are substantially the same as the repealed paragraphs but reflect the change from ‘OHS’ to ‘WHS’ (see Items 5 and 6), the new definition of ‘WHS Ministers’ which replaces ‘Ministerial Council’ (Item 6) and SWA’s updated functions (Item 8).

 

Items 3-6 - Section 4

6.       Item 3 repeals the redundant definitions of ‘approved model OHS codes of practice’, ‘approved model OHS legislation’ and ‘approved OHS compliance and enforcement policy’. The definitions are used in section 6 of the SWA Act which is repealed by Item 8.

 

7.       The definitions of ‘model OHS codes of practice’ and ‘model OHS legislation’ are replaced with a new definition ‘model WHS legislative framework’.

 

8.       Items 5 and 6 repeal the definition of ‘OHS’ and replace it with a new definition of ‘WHS’, which is a more commonly used term and consistent with the terminology used in the model WHS legislative framework.

 

9.       The new definition of WHS Ministers replaces the redundant definition of ‘Ministerial Council’, which refers to the abolished Workplace Relations Minister’s Council. The new definition uses updated language but will not change the way that decisions are made in practice. The same group of Ministers will be responsible for providing approvals, directions and so forth. See also transitional arrangements in Item 9.

Item 7 - new Section 5A

10.   Item 7 gives effect to Recommendation 1 of the Review. It inserts a new provision to clarify SWA’s role and provide guidance as to how it is to perform its functions. The Review found that while SWA’s functions were clearly identified in the establishing legislation its role was not. [2] The lack of a clear legislated role for SWA has resulted in some ambiguity around its purpose and how it is to perform its functions.

Item 8 - Section 6

11.   Item 8 gives effect to Recommendation 2 of the Review by updating, consolidating and simplifying SWA’s functions. It repeals the table in the current section 6 and inserts a new table.

 

12.   The Review found that while the principles embodied in SWA’s role largely remain valid the functions need to be revised to suit changed circumstances, allow SWA to address emerging WHS issues, and to ensure its functions remain current into the future. [3] For example, since SWA was established it has successfully developed model WHS laws for implementation in the jurisdictions. SWA’s functions have been revised to make necessary updates to wording, consolidate functions where possible, and to clarify relationships between the current functions. The revised functions will ensure that SWA is positioned to address emerging WHS issues.

 

Function 1

13.   Function 1 updates and consolidates the current Functions 1, 5 and 9. New Function 1 provides that SWA is to develop, evaluate and revise national work health and safety and workers’ compensation policies and supporting strategies. SWA may develop a number of different strategies but is specifically required to continue its work on a national WHS strategy and a national compliance and enforcement policy.

 

14.   A policy dealing with compliance and enforcement is currently required by Function 5 in section 6 of the SWA Act. The policy applies to the model WHS legislative framework and promotes a nationally consistent approach to regulation of the legislative framework. The policy is prepared by SWA for approval by the WHS Ministers.

 

15.   Function 9 in section 6 of the SWA Act requires SWA to develop a ‘National OHS Strategy’ which has been replaced by the current ‘Australian Strategy’. The new function does not refer to a particular WHS strategy to ensure terminology will remain current into the future. A national strategy is critical to ensuring a consistent and coordinated national focus on priority WHS issues. The strategy is prepared by SWA for approval by the WHS Ministers.

 

Function 2

16.   Function 2 updates and consolidates current Functions 2, 3, 4 and 6. The updated and consolidated function recognises that the model WHS legislative framework has been implemented in most jurisdictions. SWA is responsible for developing, evaluating, and if necessary, revising the model WHS legislative framework.

 

17.   SWA will also continue to develop non-regulatory materials which support the consistent interpretation of the model WHS laws and compliance with the framework, such as interpretive guidelines and advice. 

 

Function 3

18.   Function 3 updates current Function 11. The Review found that there was minimal support amongst stakeholders for SWA to work towards harmonising workers’ compensation laws. Instead, new Function 3 provides for SWA to work with the Commonwealth, States and Territories to develop proposals to improve workers’ compensation arrangements, and to promote national consistency.

 

Function 4

19.   Function 4 updates and consolidates current Functions 7 and 8 which deal with the collection of data and research. Under the new function SWA will continue to collect, analyse and publish relevant data, as well as undertake and publish research, to ensure its policy development is evidence-based.

 

Function 5

20.   Function 5 updates current Function 10. The new function provides for SWA to develop and implement national strategies and initiatives to support improvements in WHS outcomes and workers’ compensation.

 

Function 6

21.   Function 6 updates current Function 13. The revised function provides for SWA to engage and collaborate with national and international bodies in an effort to drive further improvements in WHS outcomes and workers’ compensation arrangements. SWA may also be invited to represent Australia at certain specialised international forums such as the G20 Occupational Safety and Health Experts Network and the United Nations Subcommittee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals. The Department of Employment is the primary representative of the Australian Government on WHS and workers’ compensation matters internationally however SWA has particular expertise in these areas.

 

Function 7

22.   Function 7 updates current Function 12, and refers to ‘WHS Ministers’ instead of the repealed definition of ‘Ministerial Council’.

 

Function 8

23.   Function 8 replicates existing function 14. The item allows for other functions to be conferred on SWA by or under the SWA Act or any other law of the Commonwealth. For example, additional functions may be conferred by regulations made under the SWA Act.

Item 9 - Transitional provision - things done by, or in relation to, the Ministerial Council

24.   Item 9 is a transitional provision. The provision clarifies that anything done by, or in relation to, the Ministerial Council under the SWA Act immediately before the commencement of this item has effect after that commencement as if the thing had been done by, or in relation to, the WHS Ministers. For example, a model WHS Code of practice approved by the Ministerial Council will be taken to have been approved by the WHS Ministers.

Part 2 - Consequential Amendments

25.   A number of consequential amendments are required to replace references to ‘Ministerial Council’ with ‘WHS Ministers’, and references to ‘OHS’ with ‘WHS’ respectively.

 

26.   Item 70 repeals and replaces section 69, which provides for how ministers give directions, an approval, or a refusal for the purposes of the SWA Act. The new section is substantially the same and approval will still be provided in accordance with the procedures determined by the relevant ministers.

 




[1] ILO (1981), C155 - Occupational Safety and Health Convention, 1981 (No.155), Articles 4 and 8.

[2] Review of Safe Work Australia’s Role and Function (2016) (‘The Review’), page vi.

[3] Ibid, page vi.