Better Safe Than Sorry

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Better Safe Than Sorry!
An Overview of the Proposed Amendments to the
Occupational Safety Health Legislation
Maria Saraceni, Partner
7 July 2004
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INTRODUCTION

• The changes are significant and far-reaching!
• The purpose of the proposed amendments is to
  strengthen and improve the existing statutory
  provisions.

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DUTY OF CARE IN THE WORKPLACE

• Sections 19 to 23
• Duties owed by
• - employers
• - employees and self-employed persons
• - persons in control of workplaces
• - manufacturers, importers, suppliers and
  installers.
• Aim to cover the field.
• Various workplace situations treated as
  employment.

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DUTY OF CARE IN THE WORKPLACE

• Modifications of and additions to duties
• Laing Report recommendations perception of
  avoidance of responsibility
• Section 3 definition of workplace a place
  whether or not in an aircraft, ship, vehicle,
  building or other structure, where employees or
  self-employed persons work or are likely to be in
  the course of their work
• Section 19(4) and (5) removed and replaced by
  section 23D.

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DUTY OF CARE IN THE WORKPLACE

• Section 21 duties of employers and
  self-employed persons repealed and replaced
• Requirement to ensure safety or health of a
  person not affected by any hazard arising from or
  increased by work or system of work
• Same obligations apply to a body corporate if
  operates for gain or reward (even if not the
  employer) .

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DUTY OF CARE IN THE WORKPLACE

• Section 23D principal/ contractor situation
• Encompasses duties of employee and employer
• Must be in course of trade or business
• Principal must have capacity to exercise control
  over contractor
• Agreement purporting to give contractor control
  in relation to principals duties is void if it
  is a matter over which the principal has the
  capacity to exercise control.

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DUTY OF CARE IN THE WORKPLACE

• Section 23E labour arrangements in general
• Where worker carries out work for another person,
  who has power of direction and control similar to
  that of an employer over its employee
• Only applicable when sections 23D and 23F do not
  apply
• Designed to plug the gap
• Waiver by a worker not permitted.

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DUTY OF CARE IN THE WORKPLACE

• Section 23F labour hire arrangements
• Obligations both on agent (person who carries
  on business of providing workers) and client
  (person for whom work carried out by worker
  provided by agent)
• Applies where no employment contract between
  worker and client, but agreement between worker
  and agent
• Must have capacity to exercise control for duty
  to arise
• Similar obligations to those contained in Section
  23

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DUTY TO INVESTIGATE

• Section 23K employer to whom a hazard is
  reported by an employee must investigate it
  within a reasonable time, determine action to be
  taken and notify employee of determination
• It is a matter of communication.

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DUTY TO NOTIFY

• Section 23L a person having control of a
  workplace (who has a duty to remedy a hazard)
  must be notified by an employer carrying out work
  there of a situation that could constitute a
  hazard to any person
• Workplace includes means of access to and egress
  from it.

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VISITORS TO WORKPLACES

• Section 57A- a visitor to a workplace must comply
  with directions given by an authorised person
  where his presence or conduct appears on
  reasonable grounds to constitute a hazard to any
  person
• Authorised person means an employer of any
  employee at the workplace, any self-employed
  person working there or a person who has
  management and control of it
• Visitor can be directed to cease engaging in
  conduct concerned or leave workplace and not
  return until permitted to do so.
• Possible conflict with Division 2G of Industrial
  Relations Act.

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POWER TO REGULATE

• Clause 113 power to regulate extended to
  include
• - hazard identification
• - risk assessment
• - taking remedial action
• - duties to be observed by the power or person
  having control of plant used at a workplace
• The devil may well lie in the detail!

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TIPS

• Must consider nature and terms of engagement
• Review contractual arrangements (noting restraint
  on contracting out)
• Ensure appropriate communication between
  principals, contractors, labour hire providers
  etc
• Review OSH systems
• Consider annual safety compliance audits
• Consider terms of insurance policies/ parties
  covered
• Adopt appropriate protocols with regard to
  worksite visitors.

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ADMINISTRATION OF THE ACT AND PENALTIES
Better Safe Than Sorry!

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HOW WILL THE ACT BE ADMINISTERED?

• Occupational Safety Health Tribunal
• Commissioner under the Industrial Relations Act
  1979
• Administrative matters
• Unfair dismissal of OSH rep
• Procedure Industrial Relations Act

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HOW WILL THE ACT BE ADMINISTERED?

• Magistrates continue to hear prosecutions
• Worksafe inspectors

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INCREASE IN PENALTIES

• Penalties manifestly inadequate
• Currently
• 100,000 maximum for general duty of care breach
• 200,000 maximum for general duty of care breach
  causing death or serious injury

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INCREASE IN PENALTIES

• Section 19(1)
• An employer shall
• So far as practicable
• Provide and maintain a working environment
• In which employees are not exposed to hazards
• General Penalty - 25,000

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INCREASE IN PENALTIES

• Employees
• Section 20(1) and (3)
• 10,000
• 20,000 if same breach causes death or serious
  injury
• General Penalty - 5,000

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AVERAGE PENALTIES

• WorkSafe Prosecutions
• 2001 - 5,600
• 2002 - 7,300
• 2003 - 9,000

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INCREASE IN PENALTIES

• The changes
• Significant increases in penalties particularly
  in relation to bodies corporate
• Higher penalties for repeat offences and
• New offences causing death or serious harm
  through gross negligence attracting higher
  penalties including imprisonment.

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INCREASE IN PENALTIES

• Gross Negligence
• Knowledge that the breach was likely to cause
  death or serious harm
• Disregard of that likelihood and
• That the contravention did cause such death or
  serious harm.

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INCREASE IN PENALTIES

• Tiered penalty system
• Level 4 19(1) contravened in circumstances of
  gross negligence
• Level 3 19(1) contravened and someone dies or
  is seriously hurt
• Level 2 19(1) contravened without being a level
  3 or 4 offence
• Level 1 general penalty (s.54)

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INCREASE IN PENALTIES

• Maximum penalty for corporation - 500,000
• Maximum penalty for individual (not an employee)
  - 250,000 and imprisonment
• Directors, Managers

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INCREASE IN PENALTIES

• Regulations
• 50,000 for corporations
• 25,000 non employee individuals
• 5,000 for employees
• Subsequent offence 25 increase

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INCREASE IN PENALTIES

• Undertakings
• Sentencing Option
• Take specified steps to improve occupational
  safety and health
• Take steps to publicise an offence and related
  details
• Remedy any consequences for specified offence
• Carry out a specified project or activity for the
  improvement of OSH in the community
• Lesser Offence General Penalty

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INCREASE IN PENALTIES

• The point is that those who take their
  occupational safety and health responsibility
  seriously have nothing to fear from the proposed
  reforms.
• Mr JC Kobelke
• Second Reading Speech
• 8 April 2004

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Role of Occupational Safety Health
Representatives PINS
Better Safe Than Sorry!
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ROLE OF OSH REPRESENTATIVES

• Pivotal role in consultative processes at
  workplace
• May develop scheme for election of OSH
  representatives
• represent employees at 1 or more workplaces
• represent any distinct group of employees at
  workplace
• contractor deemed employee

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ROLE OF OSH REPRESENTATIVES (cont.)

• provide for casual vacancies/future elections
• provide mechanism to vary scheme
• election to be by secret ballot
• disagreements re elections referred to WAIRC
• Regulations may provide employer to pay
  entitlements
• fees for designated OSH courses (where time off
  work is taken)

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ROLE OF OSH REPRESENTATIVES (cont.)

• costs incurred in connection with attendance at
  course (travel, accommodation, sustenance)
• Payment of wages irrespective whether attendance
  is in employees own time
• Employer must establish an OSH Committee

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PROVISIONAL IMPROVEMENT NOTICES

• OSH rep who has completed prescribed training may
  issue a PIN
• requiring redress re OSH matters
• to either an employee or employer
• if of opinion that person is
• contravening the Act or
• has and will likely continue to contravene the
  Act and
• has undertaken necessary consultations

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PROVISIONAL IMPROVEMENT NOTICES (cont.)

• Necessary consultations re PIN
• before issue of PIN
• consult with person to whom PIN is to issue
• where reasonably practical, consult with fellow
  OSH representatives at workplace
• in circumstances to be specified in regulations,
  first consult with a department officer

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PROVISIONAL IMPROVEMENT NOTICES (cont.)

• Obligatory inclusions in PIN
• statement re contravention
• reasonable grounds for holding opinion
• specify relevant provisions in Act
• specify day by which contravention to be remedied
  (gt7 days post issue)
• statement re right to review by inspector
• Request for review to be in writing

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PROVISIONAL IMPROVEMENT NOTICES (cont.)

• Request must be made prior to expiry of timeframe
  for remedial action
• Request for review suspends operation of PIN
• Failure to comply with PIN is an offence
• (Maximum penalty for first offence
• Employee 5,000
• Individual 25,000
• Body corporate 50,000)

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PROVISIONAL IMPROVEMENT NOTICES (cont.)

• Limitation on PINS (possible regulations
  statutory review)

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TIPS

• Review recruitment process for OSH
  representatives
• Review available training
• Review employment contract
• Introduce protocols for the issue of PINS
• Draft pro-forma form for PINS
• Review accountability standards and practices
• Ensure open lines of communication to all levels
  of management

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QUESTIONS
For more information, please contact Maria
Saraceni, Partner Tel [phone]
Email msaraceni_at_jacmac.com.au