28 May 2009
Article by Joe Catanzariti
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 laws.
Employers are expected to enjoy many benefits from the proposed laws,
such as greater certainty when operating across multiple jurisdictions.
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 persons.
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.
Offences
Prosecutors will bear the onus of proving an offence, beyond reasonable doubt,
in contrast to the NSW and Queensland position.
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 a prosecution.
Unions will no longer be able to prosecute for breaches of OHS laws.
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.
Prosecution methods
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.
Consultation
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 subject-matter.
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 2011
WCV's: Send us your thoughts on these changes?
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