The death knell for the disparate and inconsistent OHS laws
currently existing throughout Australia rang loudly on 18 May 2009,
when an agreement was reached by all Federal, State and Territory
governments, except for Western Australia, to a national framework
for uniform OHS laws.
The Communiqué released on 18 May 2009 by the Australian,
State, Territory and New Zealand Workplace Relations Ministers'
Council (WRMC), is aimed at enhancing safety protections for
Australian employees and providing greater certainty, consistency
and protection for all workplace parties, including employers.
The Safe Work Australia Council has already been instructed by
the WRMC to commence the drafting of the model OHS laws. However,
the development of the model OHS laws will be heavily reliant on
extensive stakeholder consultation and responses to an exposure
draft bill to be distributed for public consultation. It is
anticipated that matters raised during the consultation processes
will play a role in the final product for WRMC's decision.
The model OHS laws will:
Include enhanced duty of care provisions so that all persons
who conduct a business or undertaking will owe a duty of care to
all persons involved in, or affected by, work activity, not only
workers, in order to ensure that OHS legislation applies to all
hazards and risks arising from the conduct of work; and
Maintain that breaches of duties of care are criminal offences
in order to reflect the seriousness of non-compliance with a duty
of care and provide for significant penalties in OHS
It is acknowledged that each jurisdiction will have to face
changes in their current OHS arrangements in order to help achieve
the goal of uniform OHS laws.
Two important decisions of the WRMC are that:
The prosecution should bear the onus of proving beyond
reasonable doubt all elements of an offence relating to
non-compliance with a duty of care, thus removing the reverse onus
of proof contained in some States' OHS legislation; and
Only an official who is acting in the course of a public office
or duty may bring a prosecution for a breach of the Act, thus
removing the capacity of unions to bring prosecutions for breaches
under some States' OHS laws.
Economic benefits will arise from the clarity and uniformity of
national OHS laws. In particular, it will be easier for employers
operating across State boundaries to manage their risk and
implement safety compliance systems. The increased ability to
manage their risk will have a number of direct bottom line
consequences for businesses, from making savings in Workers
Compensation claims and premiums through to increasing morale in
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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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.
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