The National Workplace Relations Ministerial Council has today released a model Occupational Health and Safety Bill1 (Bill), forming the centrepiece of the initiative to harmonise Australia’s Occupational Health and Safety (OHS) law.

The Bill can be accessed through the links set out below, together with the following draft supporting documents:

  • Discussion paper providing information on the Bill, together with guidance material on ‘reasonably practicable’ and ‘conduct of a business or undertaking’ (key terms under the new laws)
  • Regulations on some of the key areas, providing further detail to that contained in the Bill, and
  • a Regulatory Impact Statement.

The key terms of the Bill provide that:

  • All persons who conduct a business or undertaking (PCBU) will be required to take reasonably practicable steps to ensure the health and safety of persons performing work for them (whether employees, contractors, labour hire or otherwise), and others affected by the work. This new construction will no longer rely on employment as the determinant of whether a duty of care is owed and other obligations are attracted.
  • Directors and senior managers will be required to comply with a positive duty to exercise due diligence to ensure compliance by their company, partnership or association—now clearly confirming the need for corporate governance in the area of health and safety.
  • Proving a failure to meet the standards set out in the legislation will fall to the prosecution (which removes the much criticised ‘reverse onus’ in New South Wales and some other jurisdictions).
  • Removal of the ability of Unions to commence and conduct prosecutions (as is currently permitted in New South Wales).
  • Improved rights of appeal for some jurisdictions (allowing all jurisdictions to appeal findings of guilt to the High Court).
  • Changes to arrangements for consultation with employees and OHS issue resolution, requiring PCBUs to consult with all workers and other duty holders (not just employees).
  • Broadened union right of entry for OHS purposes (including consultation and advice to members) consistent with, and subject to, the provisions of the Fair Work Act 2009 (Cth).
  • Significant differences (in some jurisdictions) to the powers and rights of inspectors and safety regulators when conducting OHS investigations.

The process of harmonisation so far

The most recent attempts at OHS harmonisation commenced with a national OHS review panel undertaking extensive research and consultation with a broad range of stakeholders. Freehills partner, Barry Sherriff was a member of this three-person panel. The panel then produced two reports containing a series of recommendations on issues the model laws should address or include.

These reports were reviewed and considered by the Workplace Relations Ministerial Council (WRMC). The WRMC approved over 90 per cent of the recommendations made by the panel.2

A summary of the key recommendations made by the panel and considered by WRMC can be found in our earlier newsletter.3

Implications for employers

The national model laws will confirm (and in some states extend) the broad coverage of OHS laws and the obligations owed by employers and business operators. They will also require a broader group of people with whom employers will be required to consult on OHS matters. The obligations of an officer will now be more clearly stated.

While certain policy decisions have been made by the WRMC, employers are being invited by the governments to have further input into the detail of the provisions to ensure that they properly reflect the policy positions and are workable.

The public comment period will provide employers with an opportunity to provide valuable practical guidance to the drafters. The laws deal with practical, day-to-day issues in OHS, particularly relating to workplace relationships. It is important that they are effective and do not cause unintended difficulties.

Where to from here?

With the release of the model OHS Bill comes a final opportunity for employers or other duty holders to raise any concerns with its terms or proposed duties. This consultation period will extend for six weeks, following which the WRMC proposes to vote on the terms of the model Bill and recommend it be enacted in all nine relevant Australian jurisdictions.