In early 2007, a national review panel (Panel) was established to review the Occupational Health and Safety (OHS) laws across the country. The Panel was to report to the Deputy Prime Minister and to provide model OHS legislation to be adopted nationally. The Panel was tasked with the difficult job of drafting a model OHS Act that promotes safe workplaces, increases certainty for duty holders and reduces compliance costs for business while providing greater clarity for regulators without compromising safety outcomes.
The Panel has now released two reports setting out its findings and recommendations. The reports, which complement each other and should be read together, provide recommendations on the optimal structure and content of a model OHS Act that is capable of being adopted in all jurisdictions.
What Has The Panel Recomended?
The model OHS Act will, if the recommendations are adopted, include six main objects which will be based on current OHS legislation around the country and which facilitates and supports the ongoing harmonisation of Australia's OHS laws.
The Panel has recommended that a wide net be cast in order to place obligations on all those who have responsibility and control over a workplace. This was specifically required by the terms of reference to the Panel in order to recognise that the traditional employment relationship is no longer the sole or dominant means by which work is undertaken. The purpose of widening the scope is to ensure the health and safety of those who may not be engaged in a traditional employment like relationship (eg contractors and subcontractors).
The Panel has recommended that the principal OHS Act in each jurisdiction will provide the main obligations.
Where separate regulations in specific industries or for specific hazards are required, these matters will be addressed in regulations which are not inconsistent with the nationally harmonised OHS laws.
It was recommended that the model OHS Act clearly articulate the protection to be afforded to the public from work-related harm.
Duty Of Care
The duties of care are to apply to all of those who undertake work or are connected to work which is undertaken. The duties of care will, it is envisaged, apply to:
- Those with management or control of workplace areas.
- Designers, manufacturers, suppliers and importers of plant, substances and structures.
- Builders, erecters and installers of structures.
- OHS service providers.
- Other persons at the workplace.
'Reasonably Practicable' Duties
The report recommends that the duties be limited to what is 'reasonably practicable' and that the definition of this phrase be modelled on the one provided in the Victorian Occupational Health and Safety Act 2005. This approach is likely to be welcomed by duty holders in New South Wales and Queensland who are not currently subject to this qualification which, it has been said, has led to uncertainty about the burden of proof to be applied in those States.
The burden of proving a failure to meet the standard of due diligence will be on the prosecution under the proposed model OHS Act and it will need to prove the elements of the offence beyond a reasonable doubt.
The Panel has recommended three types of offences be created under the proposed model OHS Act.
Category 1 – most serious breach, involving recklessness or gross negligence and serious harm to a person at risk of serious harm (max penalty for a corporation: $3,000,000).
Category 2 – for circumstances where there was a high level or risk of serious harm but without recklessness or gross negligence (max penalty for a corporation: $1,500,000).
Category 3 – for breaches of duty without the aggravating factors present in the first two categories (max penalty for a corporation: $500,000).
It is proposed, a written enforceable undertaking may be offered as an alternative to prosecution in all but Category 1 offences.
An inspector making enquiries to secure ongoing compliance and health and safety protection may compel a person to provide information and the privilege against self-incrimination will not apply. However, under the model OHS Act information obtained in this way may not be used against the person in a prosecution.
An inspector making enquiries on a breach may also compel answers but subject to one's right not to self-incriminate.
Businesses may be comforted by the fact that legal professional privilege will be specifically recognised as applying to all relevant communications and documents. Questions asked of corporations will be put in writing which may assist in avoiding confusion about who, within a company, is the appropriate representative.
One central enforcement body will be responsible for investigating and initiating prosecutions under the model OHS Act. This is unlikely to appease the unions in New South Wales and ACT which currently also enjoy this privilege.
While the Panel stops short of recommending that unions can prosecute offences under the model OHS laws, unions will be able to request the enforcement body enforces category 1 and 2 breaches and if refused, seek a review of that decision by the Director of Public Prosecutions.
Unions will also be able to enter workplaces during work hours on 24 hours written notice to advise workers of OHS breaches, and consult or inspect documents relevant to a suspected OHS breach.
In recognition of the fact that this is an ever evolving area, the Panel has recommended that the OHS Act be reviewed every five years.
The legislation needs to be accepted by each of the States before it becomes law and no doubt this will present its own difficulties. However in order to prepare for the legislation, organisations can read the reports and, where appropriate, remedy shortfalls in their current OHS systems and procedures. This will, in particular, be of benefit to those organisations which organise labour, engage in contracting or are otherwise affected by the health and safety representative, right of entry and dispute resolution clauses.
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