Harmonisation of Occupational Health and Safety laws Julia Collins

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Harmonisation of Occupational Health and Safety
lawsJulia Collins
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• Overview
• Harmonisation process
• Key elements of the model OHS Act
• Issues for public comment
• Moving forward

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• How will harmonisation be achieved?
• Limited success in previous efforts to improve
  national consistency in OHS laws through the
  adoption of national OHS standards and codes of
  practice
• New approach to harmonisation consisting of
• Intergovernmental Agreement on OHS reform,
  committing all States, Territories and the
  Commonwealth to implementing model OHS laws (a
  model Act and regulations) by 2011, supported by
  model codes of practice) and a national
  compliance and enforcement policy.
• National Review into Model OHS Laws (completed in
  January 2009),
• the establishment of the Safe Work Australia,
  which has responsibility to develop the model OHS
  legislation.

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• Harmonisation process
• 18 May 2009 Workplace Relations Ministers
  Council (WRMC) made decisions on the optimal
  structure and content of a model OHS Act,
  agreeing to the majority of recommendations of
  the National OHS Review
• Safe Work Australia has developed the model OHS
  Act in accordance with WRMC decisions, providing
  drafting instructions to Parliamentary Counsels
  Committee
• 25 September 2009 WRMC endorsed the exposure
  draft of model Act and key administrative
  regulations for public comment, and reaffirmed
  the policy framework that they determined in May
  2009.

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Public comment

• Exposure draft of model Act and key
  administrative regulations
• Discussion Paper
• Regulatory Impact Statement
• Submissions emailed to submissions_at_safeworkaustral
  ia.gov.au
• Closes 9 November 2009
• Seeking comment on areas where policy position
  has not been settled and on any practical
  implementation issues

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Structure of the model OHS Act

Scope, objects and definitions
Duties of care and other obligations
Consultation, participation and representation
Protection from discrimination
Workplace right of entry
Functions and powers of the regulator and
inspectors
Legal proceedings
Other matters
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• Scope and application
• The Act binds the Crown
• Applies to all industries unless specifically
  excluded at jurisdictional level and justified to
  be separate
• Requires protection of the health and safety of
  any personincluding the wider publicfrom
  exposure to hazards and risks that arise from
  work.

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The duties of care
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• Common features of all duties of care
• The duties are non-delegable
• A person can have more than one duty by virtue of
  being in more than one class of duty holder
• More than one person can concurrently owe the
  same duty
• If more than one person has a duty for the same
  matter, then each person
• retains responsibility for their duty in relation
  to the matter
• must discharge their duty to the extent the
  matter is within the persons capacity to
  influence or control, and
• must consult, cooperate and co-ordinate
  activities with all other persons who have a duty
  in relation to the same matter.

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• Persons conducting a business or undertaking
• Must ensure, so far as is reasonably practicable,
  the health and safety of workers while they are
  engaged at work in the business or undertaking,
  and that other persons are not put at risk from
  the conduct of the business or undertaking
• Who is a person conducting a business or
  undertaking?
• Person includes a body corporate,
  unincorporated body or association and a
  partnership
• Applies to activities whether conducted alone or
  together with others, for profit or not for
  profit, with or without engaging workers
• Intended to capture the broad range of work
  relationships and business structures currently
  being used
• Business or undertaking does not extend to a
  persons private or domestic activities or to
  volunteer associations (as defined)
• Are there any other types of activities or
  undertakings that should be specifically included
  or excluded from application of the OHS Act?

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Officers

• Officers to exercise due diligence to ensure the
  entity of which they are an officer complies with
  their duty of care
• Volunteers and local government councillors are
  immune from prosecution for offences committed
  under the model Act in their capacity as an
  officer
• Modified Corporations Act 2001 definition of
  officer
• Does the definition clearly capture those who
  should have officer duties under the OHS Act?

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Workers and others

• Workers
• Must take reasonable care for themselves and
  others
• Must co-operate with the person conducting the
  business or undertaking regarding OHS
• Other persons at the workplace
• Duty similar to workers
• visitors, public and those authorised to enter
  the workplace

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Volunteers

• Volunteer means a person who is acting on a
  voluntary basis (irrespective of whether they
  receive out-of-pocket expenses)
• Model Act protects volunteers in their capacity
  as workers
• Ensures that volunteers are not discouraged from
  participating in community-based activities
• Volunteer associations are not treated as
  businesses or undertakings
• Volunteers have duties of care as officers or
  workers but cannot be prosecuted for contravening
  those duties
• Is the treatment of volunteers under the model
  Act appropriate?

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Risk Management

• Principle of Risk Management
• Model Act requires duty holders, in ensuring
  health or safety, to eliminate hazards and risks
  as far as reasonably practicable, or minimise as
  far as reasonably practicable
• Does not mandate the process of identifying
  hazards, assessing risks and controlling risks
  through the hierarchy of control
• Model Act is focussed on the outcome, not the
  process
• Risk management is implicit in the concept of
  reasonably practicable
• Risk Management process - proposal
• Model Regulations would require hazard
  identification, risk assessment and risk control
  only where the complexity of the hazard or risk
  is such that appropriate decisions about control
  are not likely to be made without conducting a
  systematic analysis.
• A general risk management process would be
  provided in a National Code of Practice.

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• Other obligations
• Notification to the regulator of serious
  incidents arising from the conduct of the
  business or undertaking
• Obligation to preserve incident site
• Offence provisions relating to undertaking
  activities without relevant authorisations
  licences, permits and registrations, including
• Offence to contravene any conditions placed on
  authorisations
• Directing or allowing a worker to contravene the
  provisions

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• Workplace consultation, participation and
  representation
• Duty to consult with workers
• Qualified by reasonably practicable
• Includes what consultation involves, as well as
  how and when it should be undertaken.
• Health and Safety Representatives for work groups
• Must be established on request from a worker
• Can direct unsafe work to cease and issue
  provisional improvement notices, but only if
  trained
• Includes disqualification provisions
• Health and Safety Committees
• Must be established within 2 months where
  requested by HSR, or 5 or more workers
• Issue resolution procedures
• Principle is to resolve OHS issues in the
  workplace as far as possible
• Default procedures in regulations
• If issue not resolved, can be referred to the
  regulator for resolution
• A review of the inspectors decision can be
  sought

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• Role of Unions
• OHS permit holders have right of entry to a
  workplace
• Without notice to inquire into suspected
  contravention
• 24 hours notice for advice or consultation
• 24 hours notice to inspect employee records or
  records relating to a suspected contravention
• subject to permit and member eligibility
  requirements, protections and accountability
• drafted to be generally consistent with the right
  of entry provisions under the Fair Work Act.

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• The regulator and inspectors
• Role in providing information and advice
• Regulator able to accept enforceable undertakings
  as an alternative to prosecution
• Inspectors to have all current powers,
  protections and accountability
• broad powers of entry to workplaces
• can issue improvement, prohibition,
  non-disturbance and infringement notices
• Act enables cross-jurisdictional appointment of
  inspectors
• Inspectors can assist in issue resolution
• Requirement to answer questions or provide a
  document
• Information cannot be used as evidence against
  the person in proceedings
• Inspectors must give warning about self
  incrimination
• Review of decisions of regulator and inspectors
• Two stage process of internal review (of
  inspectors decisions) and external review

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• Prosecutions
• Prosecution to be brought within 2 years or one
  year after an inquest, whichever is the later
• Only a public official may prosecute, but any
  person can seek a review of a decision of
  regulator not to prosecute
• Prosecution to bear the onus of proving all
  elements of an offence for breach of a duty of
  care
• Appeals process, victim impact statements,
  sentencing guidelines to be dealt with outside
  the model OHS Act

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Penalties
Categories based on degree of culpability and
risk/degree of harm
Corporations 3m Officers 600k / 5 years jail
Workers 300k / 5 years jail
Category 1
Corporations 1.5m Officers 300k Workers
150k
Category 2
Corporations 500k Officers 100k Workers 50k
Category 3
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Proposed penalties for other offences

• Category 1-3 penalties for breaches of duties of
  care
• Currently all contraventions are criminal
  offences
• Should some non-duty of care offences be subject
  to civil penalties?

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• Where to from here?
• December 2009
• Submit model Act for WRMC consideration
• Develop Explanatory Memorandum
• 2009-2010
• Development of model OHS regulations
• Consolidated draft regulations released for
  public comment in September 2010
• Development of codes of practice
• Development of a national compliance and
  enforcement policy
• Mid-2011
• Model regulations to WRMC for agreement
• December 2011
• All jurisdictions to have adopted model laws

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How will the model laws be implemented?

• The Commonwealth, States and Territories can
  either replace their current OHS Act by enacting
  a new Act or amend their current OHS Act to align
  with the model laws.
• This allows jurisdictions to implement the
  legislation in the most convenient and effective
  way.
• The model OHS Act only allows for local variation
  in the model provisions where necessary to
  conform to the local legislative environment.

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How will the implementation be monitored?

• The harmonisation of OHS is one of COAGs
  priorities under the National Partnership
  Agreement to Deliver a Seamless National Economy
• Implementation is being monitored through the
  COAG Reform Council.
• Each jurisdiction must report annually to the
  COAG Reform Council on its progress against key
  milestones.
• In order to qualify for National Partnership
  Payments, the jurisdictions must implement the
  model OHS laws by December 2011.

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How will harmonisation be maintained?

• The IGA requires that, if any jurisdiction
  proposes an amendment that impacts on the
  operation of the model OHS laws, the amendment
  must be brought to WRMC for decision at the
  national level.
• If WRMC agree to the proposed amendment, then all
  jurisdictions must adopt the amendment in order
  to maintain national consistency.
• The model OHS laws are to reviewed once every
  five years (Recommendation 232)

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• How will the model law improve OHS regulation?
• Wider application
• Stronger rights, protections and accountability
• More effective basis for national cooperation and
  use of resources
• Less need to amend the laws to address new issues
• Increase compliance rates and produce better
  safety outcomes
• Workers
• Protections cover all kinds of workers
• Consistent powers for HSRs, rights to cease
  unsafe work, rights of entry for OHS permit
  holders
• Benefits for mobile workforce through mutual
  recognition of licenses/permits
• Business
• Implementation of model Act should not
  significantly change current OHS responsibilities
• Increase certainty, reduce regulatory burden for
  multi-state businesses
• Government
• Reduce duplication and increase regulatory
  efficiency
• Business survey conducted by Access Economics for
  Regulatory Impact Statement to provide
  quantitative data on compliance costs and safety
  benefits

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