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
"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
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
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
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;
enforceable undertakings - a measure for ensuring
compliance with the legislation without resorting to
prosecution for criminal offences; and
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.
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
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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).