The Final Report (Report) of the Panel on the National Review into Model Occupational Health and Safety Laws (Panel) was released in February 2009 after the Workplace Relations Ministers’ Council (WRMC) meeting on 12 February 2009.

The Report makes 158 recommendations for the model laws dealing with matters including consultation, risk management, incident notifi cation, role of the regulator, qualifi cations and training of inspectors, privilege against selfincrimination, union right of entry, union right to prosecute and the role of codes of practice.

The Report’s recommendations on the whole refl ect the prevalent existing position on these issues in OHS laws throughout Australian jurisdictions. The most welcomed recommendation was the decision not to allow unions the power to prosecute, a right which currently exists only in NSW.

The Report’s position on the issues of personal liability and right of entry have sparked considerable interest since the Report’s release.

Due diligence

In what appears to be a signifi cant deviation from its earlier position, the Panel has recommended strengthening the personal liability provisions by putting an unambiguous positive obligation on offi cers to implement a due diligence framework in their organisation.

Offi cers will be required to take reasonable steps proactively and regularly to ensure:

  • up-to-date knowledge of OHS laws and compliance requirements
  • an understanding of the nature of the operations of the company and hazards and risks associated with the company’s operations
  • that the company has appropriate resources for controlling hazards and risks involved in the operations
  • verifi cation of company compliance, and
  • a process for receiving, considering and ensuring timely responses to information regarding incidents, identifi ed hazards and risks.

Due diligence is a term currently used in NSW, Queensland and Tasmania as a defence to the personal liability provisions.

Having earlier adopted the less onerous “Victorian style” approach to personal liability, most people expected the Panel to lessen the compliance burden on offi cers (or at least ensure that it was no more onerous than the existing standards in all jurisdictions, except WA). The duty appeared to be the same as the duty in Victoria, NT, SA and, upon the commencement of the new Act, the ACT. The duty appeared to signifi cantly water down the standard in NSW, Queensland and Tasmania. However, the Final Report has in effect defi ned the key terms to more closely refl ect the NSW approach than the Victorian one. The standard of personal liability applied is in effect the NSW approach to the standard, in all respects but the issue of onus.

The onus of proof of due diligence under the recommended model falls on the prosecution and not the defendant as it currently is in NSW, Queensland and Tasmania.

Union Right of Entry

The Report adopts an expansive approach to the right of entry of unions on OHS matters permitting unions to enter premises to investigate safety breaches, inspect documents and records with 24 hours written notice, and to consult on OHS matters. This refl ects the approach in Victoria, Queensland, the NT and WA but represents an increase in union powers in other jurisdictions.

The model laws would give unions the capacity to:

  • investigate a suspected contravention of the model laws or regulations
  • consult workers on OHS issues, and
  • provide advice to workers, and consult with the person in management or control of a business or undertaking or relevant workplace on OHS issues.

While the Panel acknowledged that potentially blurring the OHS and industrial relations environments was an issue stakeholders had warned them against, the wide scope of the union powers available under the recommended model both continue and extend the special status of unions as entrenched in OHS legislation.

Other recommendations

Among the other recommendations were the following:

  • PINs – power for health and safety representatives to issue provisional improvement notices (PINs) where they have reasonable grounds to believe there is a contravention of the legislation
  • Consultation – inclusion of a duty for a person conducting a business or undertaking to consult with workers about matters affecting health and safety
  • Risk Management – not requiring a process of hazard identifi cation and risk assessment or mandating a hierarchy of controls in the model Act. Those processes are to be established in the regulations with further guidance provided in a code of practice
  • Incident Notification – persons conducting the business or undertaking have the responsibility to notify the regulator immediately where there is a fatality, serious injury or illness or a dangerous incident arising out of the conduct of the business or undertaking
  • Prosecution – between 6 and 12 months after the event concerned in the breach, a person may request in writing that a regulator bring a prosecution for a breach and if no prosecution is brought, have the decision of the prosecutor reviewed by the DPP
  • Privilege against self-incrimination – the privilege against selfincrimination will be available to a natural person in response to a request for information or questions asked for the purposes of investigating a breach of the model Act or regulations but will not apply to questions asked for the purposes of enforcing ongoing compliance and securing health and safety, and
  • Codes of Practice – courts are to take codes of practice as representative of what is known about specifi c hazards, risks and risk controls and to assist in determining what was reasonably practicable in the circumstances.

Concluding Remarks

Overall, employers will be pleased with the recommendations of the Report.

In the WRMC Meeting on 3 April 2009, the Ministers agreed that the Safe Work Australia Council would commence developing the model OHS Act in order to provide an exposure draft of the Act in August 2009. It will be interesting to see whether the model legislation refl ects the recommendations contained within the Report.