As you may be aware, on 6 June 2008 the ACT Government released
an exposure draft of the Work Safety Bill 2008 (Bill). The Bill,
based on a review by the ACT OHS Council of the Occupational Health
and Safety Act 1989 (OHS Act), finalised in
September 2005, provides a new framework for promoting and ensuring
workplace safety in the ACT.
The Bill, which was passed by Parliament on 28 August 2008 (and
is currently awaiting notification) will replace the OHS Act.
About the Bill
It is our intention to 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
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", which is the central term
underlying the operation of the Bill means simply the health,
safety and wellbeing of people in relation to work. The term
"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 different types of work and employment arrangements.
For example, under current OHS Act, 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 imposes a duty on employers to consult with their
workers to allow them to contribute to matters affecting their work
safety. This is to allow workers to contribute to matters directly
affecting their work safety. This means that employers will now be
required to establish a worker consultation unit that best and most
conveniently allows the workers' work safety interests to be
represented and safeguarded.
It is an offence to not consult with workers on work safety
If in doubt, we can provide guidance on how best to create a
worker consultation unit and the obligations on each employer to
operate and maintain a consultative unit.
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
enforceable undertakings - a measure for ensuring compliance
with the legislation without resorting to prosecution for criminal
The Bill contains significant penalties. For example, where a
failure to comply with a duty causes serious harm, the Bill
provides for a maximum penalty of 2000 penalty units, imprisonment
for seven years, or both.
A major factor in the implementation 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 OH&S.
The Panel appointed to review OH&S laws released an issues
paper in May 2008, and will draft two reports for the Council in
October 2008 and January 2009 dealing with matters it has
identified as priorities.
This 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 implementation in 2012.
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