On 1 January 2012, the model Work Health and Safety legislation will commence operating across Australia. In preparation for this the Health and Safety Matters team have prepared a summary of the story so far, including information about how the model legislation was developed, the key aspects of the new legislation and the current progress of each State and Territory in implementing the new legislation.
A draft of the model Work Health and Safety Regulations (the model Regulations) was released for public comment on 7 December 2010. A number of draft codes of practice from priority areas were also released for public comment on that date and a number of second stage regulations and codes of practice are expected to be released for public comment soon. Mining specific draft regulations and codes of practice were released on 14 July 2011.
Both the model Act and model Regulations are expected to take effect across Australia on 1 January 2012. This will occur by each State and Territory, and the Commonwealth, enacting predominantly mirrored versions of the model Act and model Regulations.
The Key Aspects of the Model Act
Duties of care
Primary duty of care
The primary duty of care under the model Act is placed on a “person conducting a business or undertaking” (PCBU). Under the model Act, a PCBU is required to ensure the health and safety of workers at the workplace, so far as is reasonably practicable.
Reasonably practicable means reasonably able to be done, taking into account:
- the likelihood of the hazard or the risk occurring
- the degree of harm that might result
- whether the person knows, or ought reasonably to know, about the risk and ways to eliminate or minimise it
- the availability and suitability of ways to eliminate or minimise the risk, and the cost associated with eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The model Act also places secondary duties on officers, workers and other people at the workplace.
Officers are required to exercise due diligence to ensure that the PCBU is complying with its duties and obligations under the model Act.
An “officer” in this context, includes:
- a director or secretary of the corporation, or
- who makes or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation
- who has the capacity to significantly affect the corporation’s financial standing
- in accordance with whose instructions or wishes the directors of the corporation are accustomed to act.
Therefore, you could generally expect people such as the CEO, CFO and General Manager of a corporation to be officers. However, the definition may potentially extend further than this, to other managers, depending on the organisational structure of the corporation.
Due diligence requires officers to take reasonable steps to acquire and keep up to date knowledge of OHS matters, to gain an understanding of the operations and associated risks, and to ensure that there are appropriate resources and processes in place to identify and then eliminate or minimise any risks.
Duties for workers and others
Workers and other people at the workplace, such as visitors, are required to take reasonable care for both their own health and safety and the health and safety of others.
It is noteworthy that the model Act does not use the terms “employer” or “employee”. By instead using the terms “PCBU” and “worker”, the model Act does not rely on there being an employment relationship for the duties to apply and therefore the model Act is given a much broader application.
None of the duties mentioned above can be delegated to another person. However, it is possible that more than one person can owe the same duty at the same time. In these circumstances, each person is responsible for discharging that duty to the extent that it is within their capacity or control and they must consult, cooperate and coordinate their activities with the other duty holders. It is also possible for one person to have more than one duty, for example, an officer who is also a worker. In that case, the person must ensure that they are complying with all of their duties.
The penalties for breaches of any duty represent a marked increase from the penalties that currently apply in many of the States and Territories. The penalties are split into categories based upon the degree of culpability and the risk or degree of harm caused.
The table below describes the different categories and sets out the maximum penalties for each category:
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There are also other, lesser penalties under the model Act for failing to comply with certain provisions other than breaching health and safety duties of care. For example, there are penalties for noncompliance with notices, for breaching a duty to consult with workers, and other similar provisions.
Prosecution of offences
Prosecutions for breaches of the model Act must be brought within 2 years of the breach, or within 1 year following an inquest, whichever is later. In most jurisdictions, only a public official may prosecute. However, New South Wales has departed from this and retained the right for unions to prosecute, but only in relation to category 1 and 2 offences and only if the regulator has gone against the advice of the Director of Public Prosecutions in its decision not to prosecute.
As is typical of criminal prosecutions, the prosecutor is required to prove all of the elements of the offence beyond reasonable doubt under the model Act.
The structuring of the offences marks a significant change for both New South Wales and Queensland. Both of these States previously had a reverse onus of proof which required the defendant to prove that they had taken all reasonable steps to ensure safety. Under the model Act, the prosecutor is required to prove that the defendant did not do everything that was reasonably practicable to ensure safety. This is more in line with the current position in the other States and Territories.
Breaches of the model Act may be investigated by an inspector appointed by the relevant regulator in the State or Territory, or by a union official who holds a Work Health and Safety permit.
However, the functions and powers of the inspectors are much broader than those given to union officials.
Inspectors have extremely broad powers upon entering a workplace. In particular, they may inspect any documents, use any equipment, take any copies, take samples and require any person to answer questions. Under the model Act it is an offence if a person does not give reasonable assistance to an inspector.
A person does not have any right to silence when dealing with an inspector, even if this would force the person to reveal self-incriminating information. However, a self-incriminating answer to an inspector’s question cannot be used as evidence against that person in criminal or civil proceedings.
The model Act still provides protection against the disclosure of privileged documents. Confidential communications between a person or company and their legal representative are protected by legal professional privilege and do not need to be disclosed to an inspector or any other person.
Health and Safety Representatives
The model Act also provides for the election and functions of Health and Safety Representatives (HSRs). If a worker requests a PCBU to facilitate an election for one or more HSRs, then the PCBU is required to do so. Elected HSRs then hold office for three years and carry out various functions relating to work health and safety, such as inspecting the workplace, seeking to establish health and safety committees and attending training on health and safety issues.
PCBUs are also required to consult with workers in relation to matters that are likely to affect their health and safety at work. A failure to consult may result in a penalty being imposed.
The model Act also protects workers from discrimination on the grounds of their involvement with work health and safety activities or matters. If a worker is dismissed or otherwise injured in their employment, or prospective employment due to their involvement in work health and safety activities, then, under the model Act, a Court may order reinstatement or compensation, or impose an injunction. In relation to discrimination, the model Act introduces a reverse onus of proof, requiring the person accused of discriminatory conduct to prove that involvement with work health and safety activities or matters was not one of the reasons for the conduct.
State and Territory-based differences
Although most provisions of the model Act will be enacted in the same way in each State and Territory, the model Act does envisage some minor jurisdictional differences. For example, each State and Territory will have a different regulator, which will be the same body that currently regulates compliance under the State or Territory’s current regime.
As previously mentioned, New South Wales has already departed slightly from the model Act by allowing unions to continue prosecuting offences in very limited circumstances. It remains to be seen whether any of the other States or Territories will introduce any significant changes.
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