Australia: OHS – Call It Harmonisation Or Nationalisation But Either Way A Change Is In The Air

What's News? 

The Federal Government continues to push for the implementation of occupational health and safety law reforms.  In particular, it seeks to harmonise occupational health and safety laws by introducing a single, national system to replace the many largely State and Territory based systems that currently operate. 

The latest step involves the release of an exposure draft of a model national occupational health and safety Act, currently called the Safe Work Act 2009.  Draft model Regulations have also been released, with further sets of regulations to be developed and released over the next few months.  The model laws follow two reports arising from a 'National OHS Review' and to a large extent adopt the recommendations made by the National OHS Review Panel.  Please click here to access the model laws, which you have until 9 November 2009 to provide comment on by way of written submissions. 

The Federal Government's aim is for all States, Territories and the Commonwealth to agree to adopt the model laws so that they may commence operation on 1 January 2012. 

In this update, we provide a high level overview of some of the key issues flowing from the model laws. 

Key Issues

Who's Responsible?

The model laws take the focus off traditional employment and contractor relationships and instead place responsibility for occupational health and safety on a number of parties.  The primary safety duty rests with persons who conduct a business or undertaking (whether alone or with others, and whether or not that business or undertaking is conducted for a profit) so it is anticipated that this will cover a broader range of persons and entities than most current laws.  It is proposed that persons conducting a business or undertaking should have obligations to:

• protect the health and safety of their 'workers' while they are engaged at work in the business or undertaking (including those engaged by it, caused to be engaged by it and those whose activities in carrying out work are influenced by it).  Importantly, 'workers' is broadly defined and catches contractors and volunteers
• not put at risk the health and safety of others arising from work carried out as part of the conduct of the business or undertaking.

Some of the other parties with proposed safety duties under the model laws include persons with management or control of a workplace, or of fixtures, fittings or plant at a workplace, designers, manufacturers, importers and suppliers of plant, substances or structures for use at a workplace, self-employed persons, workers themselves (in a broader way than, for example, in the current New South Wales provisions) and other persons at places of work.

The model Act makes it clear that those with safety duties cannot delegate them, which reflects the current position in most if not all jurisdictions.  This means, for example, that a duty holder cannot effectively assign its obligations with respect to safety to another. 

The model Act also acknowledges that a person can have more than one duty and that two or more persons may concurrently have a duty.

Risk Management Approach

The principle of risk management permeates the model laws.  The idea is that health and safety should be ensured by eliminating hazards and risks to health 'so far as is reasonably practicable' and, where that is not possible, to minimise those hazards and risks.

As a consequence, a number (but not all) of the safety duties contained in the model laws only require the protection of health and safety 'so far as is reasonably practicable'.  This will be a welcome change for employers in some States (e.g. New South Wales and Queensland) where the requirement to protect health and safety is currently absolute, unqualified and subject only to limited defences.  It may also have the effect of limiting the number of prosecutions commenced in those States, because the responsibility will rest with the prosecutor (which cannot be the union) to show that the duty holder failed to do everything reasonably practicable to ensure health and safety.

What About The Liability Of Directors And Managers?

In some States, directors and certain managers are currently deemed to have committed an offence if the entity in which they hold the office of director or the position of manager contravenes occupational health and safety laws.  This is proposed to change.  Instead, the model Act will place a duty on 'officers' to exercise due diligence to ensure that the entity in which they hold office meets its safety obligations. 

Importantly, the term 'officer' is broadly defined and includes not only directors, but also persons who make, or participate in making, decisions that affect at least a substantial part of the entity's business or undertaking, persons who have the capacity to significantly affect the entity's financial standing, receivers and managers of any property of the entity and liquidators of the entity.

Penalties

The model Act attempts to streamline penalties by grouping offences into 3 distinct categories and assigning a maximum penalty to each category of offence.  These penalties significantly increase those currently applicable in most if not all jurisdictions.

A category 1 offence is the most serious, involving recklessness, and death or serious illness or injury, or a high risk of the same.  A category 2 offence is essentially the same as a category 1 offence, but without any recklessness.  The least serious offence is a category 3 offence, which involves a breach of a duty, implicitly, without a high risk of serious illness and injury and without recklessness. 

The proposed maximum penalties are considerable, being between:

• $500,000 (for a category 3 offence) and $3,000,000 (for a category 1 offence) for corporations
• $100,000 (for a category 3 offence) and $600,000 and/or up to 5 years' imprisonment (for a category 1 offence) for officers
• $50,000 (for a category 3 offence) and $300,000 and/or up to 5 years' imprisonment (for a category 1 offence) for workers and other persons.

Given the increase in penalties, it was considered that higher penalties for repeat offenders were not warranted.

Notification

The obligation to notify the relevant authority rests with the person who conducts the business or undertaking and extends only to 'notifiable incidents'.  'Notifiable incidents' are essentially 'dangerous incidents' (e.g. arising from falls from heights, explosions, fire, structural collapse etc.) and incidents which involve death or 'serious illness or injury' (e.g. illness or injury requiring in-patient hospital treatment or immediate medical treatment in prescribed circumstances).

Where a 'notifiable incident' occurs, the person with the management or control of the workplace must preserve the incident site until an inspector arrives (or directs otherwise).  However, interference with the site is permitted, for example, in the interests of preserving safety or to remove an injured or deceased person.

Consultation And Representation

As you would expect, the model laws continue to require consultation and representation.

Next Steps

The model Act and Regulations are open for public comment until 9 November 2009, after which time Safe Work Australia will consider all submissions and amend the model Act and Regulations as required.

If you would like to know more about how the model laws will impact your business, or you are considering making submissions about them to Safe Work Australia, please let us know.  The Gadens Lawyers Workplace Relations team is experienced in dealing with all matters relating to workplace safety and is more than happy to assist you. 

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.