Key Point

  • The Bill is intended to inform and complement the national vision and is proposed as an interim measure.

On 6 June 2008 the ACT Government released an exposure draft of the Work Safety Bill 2008. It is based on a review by the ACT OHS Council of the Occupational Health and Safety Act 1989 (OHS Act), which was finalised in September 2005 and aims to provide a new framework for promoting and ensuring workplace safety in the ACT.

In this article we'll outline the most significant elements of the Bill, and also briefly discuss how the Bill relates to policy and legislative developments in OH&S, both in the ACT and nationally.

Duty to manage risk

The Bill imposes work safety duties on relevant parties, including workers and employers to manage risk and promote work safety.

"Work safety", the central term underlying the operation of the Bill, means simply the health, safety and wellbeing of people in relation to work.

"Risk" takes on its ordinary meaning of "exposure to the chance of injury or loss".

The Bill provides that a person manages risk in relation to a duty by taking all reasonably practicable steps to eliminate risk, or, where that is not reasonably practicable, minimise risk (ie. through risk management mechanisms and consultation).

This broad approach is intended to increase the applicability of the duties to the different types of work and employment arrangements. For example, under current OH&S legislation, contractors and other non-employee workers are generally captured as third parties at or near a workplace. In contrast, the Bill applies even coverage to all types of workers.

Moreover, duties themselves are expanded. For example, a manufacturer in the ACT would have to comply with the duties to manage risk as an employer as well as with duties to manage risk as a manufacturer of plant, product or structure. A person may be subject to more than one duty, and, if the duty applies to more than one person, each person must comply with the duty (although there is scope to avoid duplication).

Duty to consult

The Bill also imposes a duty on employers to consult with their workers to allow them to contribute to matters affecting their work safety. Under the Bill, employers would be required to establish a worker consultation unit that best and most conveniently allows the workers' work safety interests to be represented and safeguarded.

Enforcement and compliance

The OHS Act was amended in 2004 to include a revised enforcement regime and new compliance provisions. The Bill does not depart dramatically from the 2004 amendments, however it does include proposed modifications necessary to ensure application to contemporary work practices and arrangements.

The Bill provides for the following compliance measures:

  • compliance agreements - between an inspector and a responsible person identified to remedy a potential contravention of the legislation;
  • improvement notices;
  • prohibition notices;
  • enforceable undertakings - a measure for ensuring compliance with the legislation without resorting to prosecution for criminal offences; and
  • injunctions.

The Bill also makes special provisions for public sector workplace compliance. Where a possible failure to comply with the provisions of the Bill is identified, a report must be given, in some cases directly to the Minister (for example, where one of the compliance measures above has not been complied with). The purpose of the public sector compliance measures is to promote quick resolutions to heath and safety issues and to maintain a high standard for the public sector, which is viewed as a model employer.

Penalties

The Bill provides for significant penalties. For example, where a failure to comply with a duty causes serious harm, the Bill provides for a maximum penalty of 2 000 penalty units, imprisonment for seven years, or both.

Policy and legislative developments

A major factor in the drafting of the Bill is the current effort by the Federal Government to introduce a national uniform or consistent OH&S scheme. On 23 May 2008, the Workplace Relations Ministers' Council agreed in principle to the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety.

The Panel appointed to review OH&S laws released an issues paper in May 2008 and, after the closing date for written submissions on 11 July 2008, will draft two reports for the Council in October 2008 and January 2009 dealing with matters it has identified as priorities (see Hedy Cray's article in this edition to learn more about the harmonisation efforts).

The Bill is intended to inform and complement the national vision and is proposed as an interim measure to ensure that the ACT is better placed to implement the model national legislation planned for 2012.

Responses and submission to the Bill must be received by 21 July 2008.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.