Safe Work Australia has today released for public comment draft model regulations and priority Codes of Practice under the model Work Health and Safety Act. Public comment is invited by 4 April 2011.
In this Legal Update we provide a brief summary of the documents and how you can contribute to the process of ensuring the regulations are appropriate and effective. We will provide more detailed discussion on key areas of the regulations in coming weeks.
The documents can be accessed at:
The approach taken in developing the regulations and Codes
The duties of care and other obligations under the model Act will be supported and complemented by:
- Codes of practice
- Guidance material
- Common policies and procedures of regulators
The development of the draft regulations and Codes of Practice has been undertaken over the past year or so by Safe Work Australia through various tri-partite groups. While a careful examination of the documents will identify issues and opportunities for improvement, those who have been involved in the process of developing them should be commended for the enormous effort that has been taken to produce the discussion drafts.
In addition to the draft regulations and Codes of Practice, Safe Work Australia has also released an Issues Paper, focussing on specific aspects upon which comment is particularly sought.
The Workplace Relations Ministers Council agreed with the recommendations of the National OHS Review Panel proposing that, to the extent that it is appropriate, the model Act and regulations should contain limited detail, with detailed guidance on the legal obligations, compliance methods and risk management to be provided in subsidiary documents such as Codes of Practice and guidance material. This approach is evident in the draft regulations and Codes of Practice, notwithstanding the length of those documents.
What do the regulations and priority Codes of Practice deal with?
The model regulations total almost 600 pages and provide for detailed requirements for the elimination or minimisation of risks from various hazards, and administrative matters such as licensing and registration. The matters covered by the regulations are:
- Representation and participation of workers (including issue resolution and union right of entry)
- General workplace management (including facilities, first aid, emergency plans)
- Hazardous work
- Hazardous manual tasks
- Confined spaces
- High risk work
- Abrasive blasting
- Electrical work
- Plant and structures
- Construction work (including high risk work and principal contractor obligations)
- Hazardous chemicals (including inorganic lead and asbestos)
- Major hazard facilities
- Mines (to be released early 2011)
- Registration and licensing (including plant, major hazard facilities and persons)
- Review of decisions made under the regulations
- Exemptions from specific requirements of the regulations
The priority Codes of Practice are those which are considered to the most significant, or are necessary to aid a proper understanding of specific regulations and how to comply with them. The priority Codes are:
- How to manage work health and safety risks
- How to consult on work health and safety
- Managing the work environment and facilities
- Managing noise and preventing hearing loss at work
- Hazardous manual tasks
- Confined spaces
- How to prevent falls at the workplace
- Labelling of workplace hazardous chemicals
- Preparation of safety data sheets for hazardous chemicals
- How to manage and control asbestos in the workplace
- How to safely remove asbestos
- Facilities for construction sites
Other Codes of Practice will be released in early 2011 for comment, as will various guidance materials.
Also released next year will be policies developed by the regulators under their "Regulators in Harmony" project, as part of their process of transitioning to regulating under the model laws with the aim of providing for greater certainty of uniform interpretation, guidance and enforcement of the laws.
A little more and a little less detail in regulations
There are a number of areas in which some jurisdictions have had specific regulations, that are not generally applicable in other jurisdictions (such as occupational diving), or where some jurisdictions have provided requirements in regulations not present elsewhere (for example, in relation to consultation). To enable uniformity between all jurisdictions (so far as that is achievable) each of these matters are provided for in the model regulations. This means that in each jurisdiction there will be matters that are the subject of regulations that have not been previously provided for.
Consistent with the "lean" approach described above, a number of the parts of the regulations provide far less detail than has been provided previously, with the detail to be provided in Codes of Practice. An example is Part 4.1 – Noise which will now comprise less than two and a half pages, providing only for the control of noise in accordance with the "hierarchy of controls" and the review of noise control measures in certain circumstances (requirements for testing and monitoring will not be imposed by regulation).
Regulations in some specific areas will provide more detailed requirements in some jurisdictions than at present, while at the same time requiring less specific requirements than currently exist in others. An example is Part 6.4 – Additional Duties of Principal Contractor. The obligations of a principal contractor in Victoria, currently limited to identifying signage and safety co-ordination planning, will be greater with the addition of obligations for ensuring Safe Work Method Statements, workplace amenities, first aid, controls for eliminating or minimising fall risks, and other particular matters. The requirements of the regulations will however be less detailed than those currently provided for by regulation in other jurisdictions such as New South Wales and Queensland. Prohibitions and requirements for live electrical work will also become more onerous in some jurisdictions and less so in others.
There are matters that are currently the subject of regulations in some jurisdictions and/or that may have been appropriate for regulation that will not be included in the model regulations. Examples of this are provisions relating to protection against tobacco smoke and those dealing with driver fatigue. This represents the outcome of the tri-partite consideration of what should specifically be in regulations and what may appropriately be provided in Codes of Practice or guidance material, as elements of broader duties of care or obligations. Whether these decisions have been appropriate in relation to specific hazards and risks may be a matter for reasoned and supported public comment.
The absence of some matters from the regulations should not be taken to suggest that those matters will no longer be required. The measures may be necessary to enable the duty holder to meet its obligations under the model Act or otherwise under other specific parts of the Regulations. This will be evident from the Codes of Practice and guidance material.
Care should be taken in considering the impact of the regulations to note the detail set out in the various schedules to the regulations (for example, labelling requirements for hazardous chemicals).
A change in the approach to the hierarchy of controls – for better or for worse?
Regulations in most jurisdictions currently provide for a hierarchy of controls to apply to requirements under the regulations to eliminate or minimise risks to health and safety – from elimination through substitution, isolation, engineering controls, administrative (people) controls to personal protective equipment. This approach does not continue under the model regulations, with the hierarchy only specified for some high risk activities.
We consider this approach may be detrimental to the interests of health and safety, and cause people to fail to comply with their duties under the model Act. Duty holders may think that they only need to consider higher order risk controls where specified in the regulations and that lower order controls may be otherwise applied without consideration.
The removal of the requirement to consider the range of controls starting at the highest level is not consistent with the object of the model Act that the "highest level of protection" should be provided as is reasonably practicable. The definition of reasonably practicable refers to what can reasonably be done. A duty holder should first determine whether elimination or engineering controls can be provided and are reasonable, before relying on lesser controls (e.g. instruction and training).
The Issues Paper sets out a proposal for the allocation of penalties under the regulations.
It is proposed that there will be four levels of penalty for breaches of the regulations, commensurate with the significance of the requirement and consequences of a breach, as follows:
- Breaches of regulations that are critical to control higher
order risks will be considered to be breaches of the model Act and
the penalties applicable to such a breach will apply (up to $3
million for reckless endangerment by a corporation; and more
commonly $1.5 million for breaches giving rise to a risk of death
or serious injury).
This approach is currently applied in Victoria. Examples of relevant regulations are control of risks in confined spaces, falls, construction and many of the requirements relating to asbestos.
- Breaches of risk assessment requirements or other breaches giving rise to a risk of death or serious injury - $30,000 to $60,000 for a corporation.
- Breaches of general risk control, signage and notification requirements - $18,000 to $36,000 for a corporation.
- Breaches of record keeping and similar low level requirements, and breaches by workers of specific requirements - $6,000 for a corporation ($1,250 for an individual).
Provision will also be made for infringement notices to be issued with penalties set at between $1,200 and $3,600 for a corporation.
Compliance with codes of practice will not be mandatory, but they may be used in proceedings to demonstrate what was known about hazards, risks and risk controls.
Comment is invited on this approach and the appropriateness of particular penalties and their application to specific regulations.
What you should now be doing
The effectiveness and reasonableness of the regulations and Codes of Practice is very reliant on the extent and quality of input by those who will have to implement the various measures in the workplace. Although the documents have been developed through a tri-partite process, with considerable expertise and experience applied to them, there may be elements that are unclear, may not be effective or may impose costs that are disproportionate to the degree to which relevant risks are minimised by those measures.
The public comment period is therefore most important. You should carefully consider each of the specific requirements as they may apply to work carried out by you or your organisation, consider the various matters raised in the issues paper, and in particular:
- The clarity of the Regulations and Codes of Practice and what they will require, including clarity in the identity of the specific duty holders on whom obligations or requirements are imposed.
- The appropriateness of qualifying specific obligations by what is "reasonably practicable".
- The appropriateness of requiring some things to be done or ensured, without qualification.
- Whether the hierarchy of controls should be applied to all obligations under the regulations to eliminate or minimise risk, or only to some obligations (and, if so, which).
- Any inconsistency between specific obligations and the model Act or any other legislation (e.g. the Fair Work Act 2009)
- Any inconsistency between specific obligations within a Part or across different Parts of the regulations.
- Whether there are matters that are the subject of regulation that may more appropriately be the subject of Codes of Practice or guidance material, or are matters that the Regulations do not currently cover that are appropriate for regulation.
- Further matters in which Codes of Practice may be useful.
- The appropriateness of the proposed penalty regime and the level of penalty that ought to be applied to specific requirements of the Regulations.
You should also consider the specific requirements of the regulations - and of the model Act – to:
- Identify the specify obligations and requirements for your business;
- Identify gaps in current policies and procedures that will need to be addressed, which may differ in each jurisdiction; and
- Commence or continue action for transitioning to compliance, providing for a single approach that will be able to be taken consistently in all of your workplaces.
The release of the regulations and Codes of Practice clearly demonstrate that the introduction of the model laws will occur and the amount of work that will be required to be ready for their commencement at the end of next year. Understanding and complying with the new requirements of the model Act and regulations should now be a priority for action early in 2011.
Members of our OHSS team are familiar with the model Act, regulations and Codes of Practice and will be pleased to assist you in considering these documents, or providing you with advice as to their application to your business and compliance requirements. Through our experience, we are also able to assist you in drafting submissions and in undertaking model laws gap analysis and transitioning initiatives.
This update was written by Barry Sherriff, who was a member of the National OHS Review panel, on whose recommendations the model Act and through that the approach to the regulations are based. He is the co-author, with Michael Tooma of "Understanding the model Work Health and Safety Act".
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.