On 7 June 2018, an amendment to the ACT Work Health and Safety Act 2011 (ACT)(the WHS Act) was tabled in the ACT Legislative Assembly. If the amendment passes the Assembly, it will come into force on 1 January 2019 and impose new Work Health and Safety (WHS) obligations for Canberra construction companies running projects worth more than $5 million.
The Work Health and Safety Amendment Bill 2018 requires companies undertaking major construction work to:
- Consult with every union that might be eligible to represent workers on site about the formation of a WHS work group
- Facilitate the election of WHS Representatives and the formation of a WHS Committee
- Pay for and arrange WHS training for WHS Representatives and WHS Committee Members, as well as pay for any associated expenses and paid time off work to attend training.
A failure to comply with these obligations will make companies liable for penalties up to $50,000, and individuals liable for penalties up to $10,000.
When the Minister for Workplace Safety and Industrial Relations, Rachel Stephen Smith MLA, tabled the Bill she stated that the amendments were in response to a report prepared by RMIT University Centre for Construction Work Health and Safety Research (the RMIT Report).
The Minister stated that “[t]his bill is a signal to the construction industry that the way safety is being communicated between employers and their workers needs to be improved.”
In 2017 the ACT Chief Minister commissioned a report on the WHS culture in the ACT Construction Industry, and the RMIT made a number of suggestions including:
- the need to address poor mental health amongst construction workers
- workers take a more active role in WHS consultation
- increasing WHS support for medium sized construction companies
- specific guidance targeting residential building companies
- principal contractors should assist subcontractors to meet their WHS obligations
- better supervision of apprentices
- reduce the paperwork and bureaucracy around WHS obligations.
Alisa Taylor, Construction Disputes Partner at Meyer Vandenberg Lawyers is not convinced that the Bill will address the recommendations made in the RMIT Report.
“While I think any legislation designed to improve work health and safety in the ACT is commendable, I am concerned that the amendments will see an increase in paperwork and bureaucracy in WHS, rather than the decrease recommended by the RMIT Report.”
“Furthermore, there are a few key terms that are not clearly defined, which will cause uncertainty for major construction projects,” said Alisa. “The area of uncertainty that needs the most clarification, in the wake of the Royal Commission into Trade Union Corruption, is precisely what it means to have to ‘consult’ with unions.”
Under the Bill, construction companies are required to make sure they ‘consult with’ eligible unions and facilitate the formation of WHS Committees when ‘work starts on the project’. It is not clear, under the Bill, how far the obligation to consult goes, and when work will have been taken to have started. Will it be when workers first arrive on site? If so, how many workers? Other pertinent questions include:
- When must the WHS Committee be formed by?
- When does a WHS Representative need to have been elected?
- When does the training need to have been completed?
Alisa recommends that construction companies start getting their ducks in a row now.
“It is looking likely that these amendments will come into force on 1 January 2019. There will be major construction projects that are in negotiation stages at the moment that may be covered by this amendment. Any construction contracts should be taking these amendments into account.”
Alisa also recommends that all construction companies take the time now to review their WHS policies and procedures.
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