The highly anticipated draft Model OHS Laws were released on 28 September 2009 after agreement from the Workplace Relations Ministers’ Council (WRMC) on 25 September 2009 giving us our first glimpse of what the harmonised regime may look like.
When COAG formally committed to occupational health and safety (OHS) harmonisation in its Intergovernmental Agreement for Regulatory and Operational Reform in OHS in July 2008, it did so with the fundamental objectives of enabling uniform, equitable and effective safety standards for all workers, addressing the compliance and regulatory burdens for employers with operations in more than one jurisdiction and creating efficiencies for governments in the provision of OHS services.
While reducing the compliance burden for employers may have been the intention, the Model OHS Laws may not have that effect.
As a review of the Exposure Draft of the Model Safe Work Provisions (Model OHS Laws) show, the devil is indeed in the detail.
The Model OHS Laws contain a number of jurisdictional notes which jeopardise the achievement of harmonisation itself. Even the name of the legislation will not necessarily be the same between the jurisdictions.
When one looks in detail at the Model OHS Laws, there are a significant number of jurisdictional notes provided which deal with issues fundamental to the OHS regime. These notes provide guidance to individual jurisdictions in drafting their own provision on a particular subject, thus meaning the provisions will not be identical between the jurisdictions. Examples include notes relating to jurisdictions having their own provisions for:
- Citations for the legislation. While a uniform form of citation has been suggested (the Safe Work Act 2009), it is not mandatory. The Model OHS Laws provide that in Victoria, a purpose provision will be used in place of the citation provision;
- extra-territorial application of the legislation;
- definitions of dangerous goods and high-risk plant;
- establishing the relationship between the Model OHS Laws and other Acts in the jurisdiction; and
- including a definition of medical treatment.
There are also notes relating to making adjustments to the Model OHS Laws’ provision for operation in particular jurisdictions where desired for issues such as:
- description of penalties as penalties or maximum penalties;
- search warrant provisions;
- amending the reporting requirements;
- terminology for the use of ‘regulator’ or ‘authorising authority’;
- the power to make guidelines; and
- additions to the list of functions of the regulator.
Duties of care
As expected, the key duty holder under the Model OHS Laws is the new replacing duty holder of “a person conducting a business or undertaking”. Under clause 18 of the Model OHS Laws, a person conducting a business or undertaking will be required to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by the person and workers whose activities are influenced or directed by the person. In addition, the person will also have a duty to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
That general duty will include but not be limited to the following:
- providing and maintaining a safe and healthy work environment;
- providing and maintaining safe plant and structures;
- providing and maintaining safe systems of work;
- ensuring safe use, handling, storage and transport of plant, structures and substances;
- providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
- providing any information, training, instruction or supervision that is necessary; and
- ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.
The principles that apply to the general duty of care provide that more than one person can be a person conducting a business or undertaking at any given workplace.1 Notwithstanding that, each person must discharge their duty to the extent of their capacity to influence or control and consult, cooperate and coordinate their activities with those other persons.
This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety. The extent of the duty as drafted in the model provisions arguably includes public safety matters, contrary to the agreed approach adopted by the WRMC in recommendation 83 of the WRMC Response to Recommendations of the National Review into Model OHS Laws.2 In addition to public safety, arguably the provisions are capable of applying to product safety matters.
Importantly, the new approach also has the potential to capture complex corporate structures since holding companies and management companies may still be performing a relevant business or undertaking for the purpose of the legislation. Even financial lenders on projects may be performing a business or undertaking and therefore may have relevant duties under the legislation.
Duplication with respect to specific duties
Under the Model OHS Laws, the person conducting a business or undertaking will also have the obligations with respect to incident reporting and consultation, thus completely replacing the need for the concept of employer to be maintained as a duty holder in the legislation.3 This is intended to maintain the expansive approach effected through the creation of the duty-holder category but in practice is likely to come with some complications. It will, for example, create significant duplication of functions with multiple persons being obliged to report the same incident.
A jurisdictional note has been provided allowing jurisdictions to amend the reporting requirement (if necessary) to remove duplicate reporting arrangements under local laws. This is likely to lead to significant differences in reporting requirements in the jurisdictions, limiting the degree to which the OHS legislation will be harmonised.
Similar issues may arise in relation to the requirements for persons who conduct a business or undertaking to consult with workers who carry out work for the business or undertaking under the Model OHS Laws, potentially requiring a duplication of efforts of duty holders with respect to consultation.
Current OHS legislation usually contains a provision overriding the general rule at common law that unless a contrary intention appears, legislation which imposes duties with respect to safety will be construed as conferring a right of civil action. The exclusion for civil actions is usually provided for in relation to the part of the legislation which provides for general duties.4 No such provision has been included in the Model OHS Laws.
Along with the broader duty of care, it appears that the Model OHS Laws will provide an expansion of the types of claims which may be made under the OHS legislation, effectively allowing rights for civil claims under the Act so that those who conduct businesses or undertakings will now need to be concerned with the possibility of other parties taking civil actions for breaches of OHS legislation.
Union right of entry
The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth. The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.
The Model OHS Laws go so far as to enshrine the role of unions in the objects of the Model OHS Laws themselves. One of the stated objects in clause 3 of the Model OHS Laws is:
“to encourage unions and employer organisations to take a constructive role in promoting improvements in occupational health, safety and welfare practices and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment”.
While such an objective may seem benign on the surface, it provides the platform for broader interpretation of the union right of entry provisions.
Under the Model OHS Laws, unions will have the right to enter workplaces for the purpose of inquiring into suspected contraventions of OHS laws that relate to or affect a worker who is a member of the union or who is eligible to be a member of the union. The right does not require an actual breach, being triggered by mere suspicion of the breach, provided that the suspicion is held reasonably.
The Model OHS Laws require no prior notice to be provided to persons conducting the business or undertaking of the exercise of the right. The union official will merely be required to notify the person conducting the business or undertaking and the person with management or control of the workplace as soon as reasonably practicable after exercising the right of entry.
Powers upon entry
Upon entry, the Model OHS Laws provide for broad powers of union officials to investigate and consult in relation to the suspected breach. This includes the power to inspect systems of work, plant, substances and records. The restriction on access to records without 24 hours written notice which currently exists under the Fair Work Act is maintained under the Model OHS Laws.
In addition, the right of entry powers extends to consultation, which is a significant expansion of rights of entry for jurisdictions such as New South Wales, South Australia, Tasmania and the Commonwealth.
The OHS training requirements for union officials provided in the Exposure Draft of the Administrative Regulations (the Model Regulations) for the Model OHS Laws are not as rigorous as the training requirements under current legislation in jurisdictions such as the ACT, NT, Queensland and Victoria.5 Clause 13 of the Model Regulations provides that prescribed training for the eligibility criteria for issuing OHS entry permits under the Model OHS Laws merely includes training in relation to:
- the right of entry requirements under the Model OHS Laws;
- the issue resolution requirements;
- the duties and framework of the Model OHS Laws;
- the application of the principle of risk management; and
- the relationship between industrial legislation and the Model OHS Laws.
The training provisions for union officials are to be contrasted with the training requirements for health and safety representatives in clause 8 of the Model Regulations which include an initial course of training of five days, one day’s refresher training each year, with the first refresher training commencing one year after the initial training and any other agreed training between the representative and the person conducting the business or undertaking.
Essentially, union officials will be required to have less training than health and safety representatives who are among those workers union officials are purportedly on site to advise with respect to OHS obligations. It is difficult to imagine why the training requirements for union officials under the Model Regulations would be so limited.
As expected, the Model OHS Laws introduce three categories of offences with the highest category attracting a maximum penalty of $3 million. These are the proposed penalties for breaches of the safety duties.
In addition to the approach for general duty penalties recommended by the National OHS Review Panel, Safe Work Australia has adopted an approach which provides for additional categories of offences.
The National OHS Review Panel did not make specific recommendations for penalty levels for breaches of specific duties other than inspectors and prescribed conduct (such as victimisation, discrimination and coercion).6 The additional categories provided in the Discussion Paper accompanying the Model OHS Laws are an attempt by Safe Work Australia to fill the gap in that regard.
The Discussion Paper sets out four additional categories of penalties which will sit below the general duties penalties structure. Those penalty categories with examples of included provisions are as follows.
Public consultation period
Safe Work Australia is accepting public submissions on the draft Model OHS Laws. The consultation period is open for 6 weeks. The closing date for written submissions on the Model OHS Laws is 9 November 2009.
After the public consultation period, the Model OHS Laws will be finalised for consideration by the WRMC at the December 2009 meeting.