In an important and significant step in the progress towards
uniform Occupational Health & Safety (OHS) laws across
Australia, the Workplace Relations Ministers Council has agreed to
a framework for uniform national OHS laws which will now form the
basis for Safe Work Australia to draft the model law.
As we have
previously reported, the uniform laws aim to address current
inconsistent laws across Australia. This will allow for enhanced
safety protections for Australian employees and greater certainty
for employers. The laws will also provide protections from
discrimination, victimisation and coercion over OHS matters beyond
what is currently available through anti-discrimination and other
Employers are expected to enjoy many benefits from the proposed
laws, such as greater certainty when operating across multiple
While the framework embodies much of the recommendations of the
National Review into the Model OHS Laws, there are some
differences. In this Alert we'll look at the major elements of
the framework and some of the changes from the Review.
The uniform laws: what duty is imposed?
Enhanced duty of care provisions: These provisions will
provide that all persons involved in or materially affected by the
performance of work owe a duty of care to all workers and other
Unifying the onus: All persons who operate businesses
will be required to do everything that is "reasonable
practicable" to ensure a safe workplace. This is in contrast
to the current NSW position.
Expansion of the workplace: The duty is not limited to
the workplace, but applies to all work activities and work
consequences wherever they may occur.
Service providers: The Council rejected the proposal to
expand the scope of obligations to include service providers,
stating that service providers would fit within the category of a
primary duty holder under the current proposals.
Prosecutors will bear the onus of proving an offence, beyond
reasonable doubt, in contrast to the NSW and Queensland
Under the proposed laws, offences for a breach of duty will
continue to be strict liability offences. The laws also provide for
a system of appeals to the High Court against a finding of guilt in
Unions will no longer be able to prosecute for breaches of OHS
Domestic premises included in definition of a workplace
The Council disagreed with the Review's recommendations that
domestic premises be excluded from the definition of a workplace,
instead finding that workers who work in private homes should be
subject to OHS protections.
The Council rejected the Review's recommendation to have the
most serious breaches heard by a jury, noting that this would cause
"unwarranted" strain on the criminal law system. Rather,
each jurisdiction will be able to decide how prosecutions are to be
heard. Effectively, this aspect of the law will not be uniform.
Director liability/Due diligence
While the Council agreed that the laws should place a duty on an
officer to exercise due diligence to ensure that the officer's
company complies with its duties under the proposed laws, it
rejected the Review's suggestion that the concept of due
diligence be defined in the model legislation. Rather, the Council
agreed that courts continue to evolve the definition.
The Council recognises the importance of consultation in
securing safe workplaces by agreeing with the broader consultation
requirements which apply between persons conducting a business or
undertaking and workers, and also between primary duty-holders and
other persons having a duty in respect to the same
Where to from here ...
The next key step is the drafting of the model OHS laws by Safe
Work Australia Council. Importantly, an exposure draft Bill will be
released for public consultation, giving stakeholders a good
opportunity to shape the final legislation.
The Council and the Commonwealth have also agreed that the issue
of OHS coverage of self-insurers under the Comcare scheme will need
to be addressed as part of the OHS harmonisation process. This will
be considered at the next Council meeting in June.
Uniform OHS legislation remains scheduled for commencement by
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.
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