Ref: Deacons law Firm
By Michael Tooma
June 1, 2009
Last week, the Workplace Relations Ministers’ Council (WRMC) agreed to a
landmark framework for uniform Occupational Health and Safety (OHS) laws
in Australia.
The new laws will apply to all Australian states and territories and will do away
with the varied OHS laws that are currently in place. The decision of the WRMC
is a remarkable step towards achieving greater consistency and higher
standards of safety across jurisdictions.
The WRMC reviewed and responded to a number of recommendations made
by the National Review into Model OHS Laws (the Review), which was formed
in 2008 to decide on the ideal structure and content of a model OHS Act for
Australia.
Importantly, the WRMC accepted over 90% of the recommendations outlined
in the Review reports, paving the way for harmonisation. The WRMC has asked
the Safe Work Australia Council to begin drafting the model OHS laws in
accordance with its decisions.
In its response to the recommendations, the WRMC accepted that the
primary duty of care should be a person to person duty owed by any person
who conducts a business or undertaking. This represents a shift away from
the traditional focus on the employment relationship which has been a feature
of most state and territory OHS legislation, including in NSW. The WRMC
agreed that a broad definition of “worker” is required and that the primary
duty should not be limited to the workplace.
Despite this, the WRMC has emphasised that the scope of the primary duty
of care must not go beyond OHS so that it applies to areas of general public safety.
The WRMC rejected the recommendation for a separate duty of care for
persons who provide OHS advice, services or products to other duty holders,
as they are covered by the primary duty owed by a person who conducts a
business or undertaking. In addition, the WRMC disagreed with the
recommendation that prosecutions for the most serious breaches (known as
category 1 offences, or indictable offences) should be dealt with under the
model Act. Instead, the WRMC took the view that the issue was outside
the scope of the model OHS Act and should be left to each jurisdiction’s
existing criminal and procedural laws in order to avoid any conflicts.
Arguably, this will lead to inconsistencies of approach in the enforcement of
the OHS laws throughout the jurisdictions, as currently OHS prosecutions
are dealt with in Queensland by a Magistrate, in NSW by a judge of the
Industrial Relations Court and in Victoria potentially by a jury.
These different procedural approaches may lead to differences of outcome
limiting the degree of harmonisation throughout the states and territories.
Also, the WRMC agreed to a positive duty placed on officers of corporations
(broadly defined) to exercise due diligence to ensure compliance by that entity
with its duties of care under the model Act. However, the WRMC considered
that there was no need to define ‘due diligence’ as it is adequately dealt with
in case law. This represents a missed opportunity to provide officers with
guidance about the actual requirements of their duty.
A draft national model OHS Act is expected from the Safe Work Australia
Council in August 2009.
More details in relation to specific areas of OHS harmonisation will be
provided next week
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