The Workplace Relations Ministers’ Council (WRMC) today released the final report1 of the panel undertaking the National Review into Model Occupational Health and Safety (OHS) Laws.
This article provides you with details of the panel’s recommendations from its two reports, how they may impact you in your business, and what you should now do in preparation for the new laws.
Background to the reports
In February 2008, the WRMC agreed that the use of model legislation would be the most effective way to achieve harmonisation of OHS laws throughout Australia. In July 2008, the Council of Australian Governments entered into a formal agreement for achieving this goal by 2011.
In April 2008, a three-person panel was appointed by the Deputy Prime Minister, the Hon Julia Gillard, as Chair of the WRMC. Mr Barry Sherriff, the lead partner of Freehills’ national OHS practice, was a member of the panel, chaired by Mr Robin Stewart-Crompton (Ms Stephanie Mayman being the third member).
The Review’s Terms of Reference2 required the panel to recommend the optimal structure and content of a model Act that is capable of being adopted in all jurisdictions. The panel had to take into account various matters, including the promotion of safe workplaces, increased certainty for duty holders, and reduced compliance costs for business. The Panel was not given responsibility for making recommendations about the regulations under the model Act (that will be the subject of a separate process).
How to understand the reports
The panel was tasked with recommending the optimal structure and content of a model Act and, consequently, an integrated set of provisions that would meet the principles set out in its Terms of Reference.
The two reports of the panel are necessarily interdependent (for example, definitions that are essential to understanding the duties of care recommended in the first report are, as the terms of reference required, dealt with in the second report). Each element of each report is complementary to or balanced by other elements in one or both reports. The justification for a particular approach in one area may be found in or supported by the recommendations in another.
The two reports should therefore be read together. The summaries at the start of each report and the lists of recommendations provide useful guides to the reports. The recommendations are iterative, providing the stepping stones to understanding the complete set of proposals in each relevant area and helping to explain the approach taken by the panel.
A common theme throughout the two reports
The Terms of Reference specifically required the panel to take into account the changing nature of work and employment arrangements. This recognised that the engagement and deployment of labour in the 21st century is quite different from the arrangements in place when the current approach to OHS laws was determined by the Robens’ Committee in the United Kingdom over 35 years ago.
The formal employment relationship, while still predominant, is no longer the sole means by which labour is organised and work is undertaken. Duties of care and other obligations and rights that are linked to an employment relationship do not have clear application to other arrangements and leave many unprotected by the reach of OHS laws.
A challenge addressed by the two reports is the need to make the model Act applicable to and effective in the variety of current and emerging ‘employment like’ arrangements.
Providing for the persons conducting a business or undertaking to be the primary duty holders, and linking other obligations such as incident notification and issue resolution to them provides a means of overcoming the limitations of reliance on the employment relationship. Referring to a broader class of ‘workers’ rather than employees recognises the contribution that all of those people can make to sound OHS management and improvement, and their entitlement to be heard on OHS matters that affect them.
Broadening the core operation of the model Act from employment to ‘employment like’ arrangements is a common theme in both reports, and central to most elements of the proposed model Act.
Recommended scope and objects of a model Act
Two issues that were fundamental to the approach to be taken to the model Act related to its scope or coverage:
- should all industries and hazards be covered by the model Act (with specific regulations as appropriate), or should specific industries be regulated by separate legislation? and
- how far, if at all, should OHS laws encroach into the area of public safety?
These matters were considered in the second report. While recognising that many specific and separate pieces of legislation that relate to OHS are now administered in different ministerial portfolios from those that will be responsible for the model Act when it is implemented, the panel recommended that:
- in developing and reviewing the model OHS Act, there should be a presumption that separate and specific OHS laws for particular hazards or high risk industries should only continue where they have been objectively justified
- as far as possible, the separate legislation should be consistent with the nationally harmonised OHS laws
- where specific provisions are necessary, they should normally be provided by regulations under the model Act, and
- to establish a clearer application of the model Act to public safety, the objective of the protection of all persons from work-related harm should be clearly articulated and care should be taken to avoid giving it a reach that is inconsistent with those objectives.
The scope of the model Act is recommended to continue to be limited by a connection to the effects of work, whether the effects are on those doing the work or on members of the public.
Consistent with this recommendation, the objects of the model Act are also recommended to be linked to work and its effects. The recommended objects are to be based on those in current OHS Acts, with the inclusion of the aim that the model Act facilitates and supports ongoing harmonisation of OHS laws.
Positive duties of care to be imposed on all work participants
The recommendations provide for duties of care to be placed on all who are involved in the undertaking of work, or providing things to enable work to be undertaken. Those who will owe duties of care are:
- persons conducting a business or undertaking (as defined)
- specific classes of person providing things for work to be done
- persons with management or control of the workplace (as defined)
- designers, manufacturers, suppliers, installers etc of plant and substances and structures
- OHS service providers (as defined)
- officers of a corporation, partnership or unincorporated association, and
- workers (as defined) and others at the workplace.
Each of these persons would have a positive and clearly stated duty of care. While those conducting a business or undertaking will continue to have a duty of care, it will be more specific and in the nature of that owed by an employer under current OHS laws.
The standard of conduct to be met by each duty holder is to be commensurate with their role, activities and ability to direct or influence matters affecting health and safety. The duty holders and the standard required to be met by each of them are set out in the following diagram, reproduced from the second report. A diagram explaining the relationship between recommended duties of care is provided at the bottom of this article.
The qualifier of ‘reasonably practicable’ will be stated in the duties and will be defined, in order to provide clearer direction for duty holders to understand what they must do. Due diligence would be defined in a way that would provide direction for officers as to what they must do to ensure compliance by the corporation, and so on.
Enabling effective risk management – ensuring information, knowledge and participation
Several areas of discussion and recommendations by the panel focus on requiring and enabling effective management of OHS risks by duty holders. In the second report, the panel draws on and enhances current provisions relating to information, knowledge and participation in OHS management.
These include:
- provision for codes of practice, which would provide guidance on compliance with the model Act and regulations, but not have special evidentiary status (not providing for deemed compliance if followed, or automatic guilt if not followed)
- requirements for the person conducting the business or undertaking to employ or engage qualified persons to provide OHS advice, with businesses that normally have 30 or more workers to have a Workplace Health and Safety Officer as presently required in Queensland3
- the role of the regulator and inspectors in providing guidance and advice
- consultation between work participants (person conducting the business or undertaking to consult with workers and other relevant businesses)
- representation of workers by health and safety representatives
- provisions for the establishment of health and safety committees
- issue resolution (with provision for escalation to an inspector or a court or tribunal)
- union right of entry to provide advice, consult and investigate breaches of the model Act or regulations, and
- the right of a worker to cease unsafe work and the power of an HSR to direct a cessation, subject to the entitlement of the person conducting the business or undertaking being able to direct the workers undertake other suitable work.
The recommendations in these areas include provision for protection against abuse, offences for failure to comply or for hindering, and means of review of conduct by the regulator or a court or tribunal.
Current protections against discrimination and victimisation have been strengthened and an offence of coercion has been added. In addition to criminal offences for discrimination, victimisation and coercion, the panel has recommended that the model Act provide for civil claims, with a variety of remedies available (including compensation and reinstatement). A defence is recommended, both for criminal and civil matters, where a person (corporation, partnership or individual) has taken reasonable precautions to prevent an employee, officer or agent from engaging in the unlawful conduct (this would not excuse the person who engaged in the proscribed conduct).
The recommendations relating to each of these areas are extensive, and care should be taken in reading each of them. The preceding discussion is only a general guide to them.
Enforcing compliance
The reports consider a number of ways in which the model Act and regulations may be enforced, with many of the recommendations representing a continuation of current provisions—some with significant improvements. There are some new approaches recommended by the panel in this area, and an extension of some approaches that currently have limited operation.
The panel has referred to enforcement as being the range of measures that ensure compliance by a duty holder. This includes the application by the regulator and inspectors of graduated enforcement—the use of a variety of enforcement tools in a way that best responds to the circumstances and achieves positive OHS outcomes.
The various enforcement measures recommend by the panel include:
- information and guidance by an inspector or HSR or union representative
- issue resolution processes, which may involve an inspector, court or tribunal
- the issuing of provisional improvement notices by an HSR
- the exercise by an inspector of various prohibiting or coercive powers, including the issuing of directions and notices (including improvement, prohibition, infringement and non-disturbance notices), and
- prosecution of offences.
While most of these measures exist in current OHS laws, the recommendations contain some changes and should be considered in full.
Various powers and procedures are recommended to support these measures. The panel recommends that the various powers of an inspector to obtain information should continue to be available under the model Act.
Chapter 42 in the second report deals with the ability of an inspector to require a person to provide documents or to answer questions. The panel has taken a new approach in this area, basing the power of the inspector, and the rights and privileges of a person from whom information is sought, on the purpose for which the information is sought.
Where the inspector requires the information to ensure ongoing safety and compliance, the person must answer the questions and provide the information. The privilege against self-incrimination would not be available, but the information could not be used against the person in any proceedings for a breach of the model Act or regulations. The inspector must provide certain information to the person when seeking the information, or the information AND any information obtained as a result will not be able to be used in proceedings against the person.
Where the inspector seeks documents or asks questions for the purpose of investigating and prosecuting a breach of the model Act or regulations, the person must answer unless the privilege against self-incrimination is available. Similar requirements for the inspector to provide information when making the request, and the consequences of a failure to do so, will apply.
Recognising practical difficulties in obtaining information from a corporation, the panel has recommended that a corporation not be required to authorise a person to answer questions on its behalf. Rather, the corporation may be required to provide written answers to questions put in writing to it, following the process provided for in the current Victorian Act.
The panel recommends that legal professional privilege be specifically recognised in the model Act.
Enforceable undertakings as an alternative to prosecution are available in a number of jurisdictions. The panel recommends that these be provided for in the model Act, with a process modelled on the approach adopted in Queensland.
The panel recommended that only public officials be able to prosecute offences against the model Act and regulations. This would mean that a union would not be able to do so, as it presently can in New South Wales or will be able to under the new ACT OHS Act.
The panel dealt specifically with sentencing options in its first report, recommending that the full range of options currently available in the various OHS Acts be provided for in the model Act.
A new approach to penalties was recommended, with the panel advising that there should be three levels of offences, determined by the level of culpability of the offender and the level of risk (not the outcome). Significant increases in penalties were recommended, with the maximum penalties for offences involving a serious risk of serious harm, without recklessness or gross negligence being slightly higher than the level that the highest penalties currently available will reach upon indexation to the date of anticipated commencement of the model Act.
In its first report, the panel recommended that the most serious offences be indictable offences, meaning that they would be brought before a judge and jury. The panel also recommended that there be rights of appeal that may ultimately be brought before the High Court of Australia. Apart from the inherent fairness in the same rights of appeal in all jurisdictions, the panel saw this as a means of ensuring that there is common jurisprudence in all jurisdictions, rather than having the various courts developing inconsistent approaches.
Maintaining harmonisation and relevance of the Act
The opportunity to harmonise OHS laws (and reap the benefits from that) should not be lost over time by changes in one or more jurisdictions.
Many of the provisions of the model Act will be new and it is prudent that their effectiveness and appropriateness after they are in operation be reviewed. Drafting issues may be identified over time. It has been observed by the panel that different ways of arranging work and different hazards and risks are continually being identified. To remain valid and effective, the model Act should be reviewed regularly.
For these reasons, the panel has recommended that the model Act provide for a review of the model and subordinate legislation at least every five years.
What businesses should start doing now
Businesses should:
- read the reports and, as necessary, obtain advice on the impact of the recommendations on them and the way they manage OHS, and
- review current systems and procedures to ensure that they will meet the proposed processes and requirements, particularly where the business is engaged in contracting, labour hire and other arrangements that will be affected by the changed requirements for consultation, work groups and HSRs, issue resolution and union right of entry.
Endnotes
- Final Report
- Terms of Reference
- Part 8 of the Workplace Health and Safety Act 1995 (Qld)
This article was written by Barry Sherriff, Partner, Melbourne.
More information
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