New ACT Bill Proposes Making WorkSafe ACT an Independent Entity

Thursday 29 August 2019 @ 3.16 p.m. | Industrial Law

On 15 August 2019, the Minister for Employment and Workplace Safety, Rachel Stephen-Smith MLA, (the Minister) introduced the Work Health and Safety Amendment Bill 2019 (the Bill) into the ACT Assembly.  The key purpose of the Bill according to the Minister's media release is to “enhance the independence, transparency, accountability and scrutiny of WorkSafe ACT”.

The Bill amends the Work Health and Safety Act 2011 (ACT) (the Act) and makes a number of amendments in response to the 2018 Independent review of the ACT's work safety compliance infrastructure, policies and procedures (the Independent Review).

About the Review

The Independent Review was announced in May 2018.  The object of the review was to assess the ACT’s work health and safety compliance infrastructure and was conducted by the Nous Group, an expert organisation in the field of work health and safety compliance.  The review was completed in August 2018, producing a final report that included 27 recommendations on how to make WorkSafe ACT a more effective work health and safety regulator.

In October 2018 the final report of the review was tabled in Parliament and the government announced its in-principle support for the report's recommendations.

About the Bill and the Changes Proposed

A key finding of the Independent Review was that the regulator’s governance model could be improved by making legislative changes to the Act. The key design principles underpinning the new legislative governance arrangements established by the Bill are twofold:

  • ensuring clarity of roles and independence of the regulator; and
  • increased transparency, accountability and scrutiny.

The Independent Review identified a lack of “role clarity” and “confusion among stakeholders as to the current role of work safety commissioner” (see the Independent Review at p 8).

“Our review of the current work health and safety governance arrangement found that there is a lack of role clarity as to the role of the regulator and the role of the Work Safety Commissioner. The important point of clarity is that the Work Safety Commissioner is not the regulator, and this creates confusion about the role the Commissioner performs; . . . “

As a result, the Bill removes the current role of work safety commissioner from the Act and would implement a new approach.

The Bill establishes WorkSafe ACT as the Office of the Work Health and Safety Commissioner (the Office), making it an “independent and separate entity” under the Act. The Office would have overarching functions including the previous functions of the work safety commissioner of education, research and awareness raising.

Specifically, the Office’s responsibilities would include:

  • the promotion of an understanding and acceptance of, and compliance with the Act or another territory law relating to work health and safety;
  • the undertaking of research, and development of educational and other programs for the purpose of promoting work health and safety;
  • advising the Minister on any matter relevant to the operation of a territory law under which the commissioner performs a function;
  • the performance of any other function given to the office under this Act or another territory law under which the office performs a function.

The Bill would also create a single statutory role of the Work Health and Safety Commissioner (WHS Commissioner), who, along with the staff of WorkSafe ACT, would constitute WorkSafe ACT.

The responsibilities of the WHS Commissioner would be:

  • the management and administration of the office;
  • the efficient and effective financial management of the office; and
  • exercise of the functions of the Office and the regulator’s functions under section 152 of the WHS Act.

The WHS Act would be amended so that the WHS Commissioner is the regulator, which would then vest the functions of the regulator in the WHS Commissioner.  Transparency of funding and accountability are to be maintained by establishing annual reporting and financial reporting requirements for the Office and establishing it as a “public sector body” for the purposes of the Annual Reports (Governance Agencies) Act 2004 (ACT).  The Office will also be a separate directorate for the purposes of the Financial Management Act 1996 (ACT).

Further transparency and accountability for WorkSafe ACT would be achieved through the preparation of the compliance and enforcement protocol, strategic plan and statement of operational intent, and the Bill requires these documents to be regularly updated and publicly available, allowing stakeholders to better understand the activities of the Office and have informed expectations about its compliance activities and priorities.

Furthermore, the Bill, according to the Minister, ensures the ACT Work Health and Safety Council advisory role to the Minister includes matters relating to the performance and activities of the Office. Additionally, through the Council, stakeholders will be given the opportunity to provide input into:

  • the development of documents made by the WHS Commissioner, including the compliance and enforcement policy and strategic plan; and the statement of expectations issued by the Minister;
  • the annual report of the Office through inclusion of a statement from the Chair of the Council;
  • advising the Minister on matters included in the annual report of the Office; and
  • consultation as part of the appointment process for the WHS Commissioner.

The Bill also proposes to change the term “work safety” in schedule 2 of the WHS Act to “work health and safety” to ensure consistency across the WHS Act.

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