In our last issue of Health & Safety Matters we outlined the main provisions in relation to the draft model OHS Bill. By way of update, the public comment period and opportunity to make submissions regarding the Model OHS Bill has now passed.
Safe Work Australia (SWA) and the OHS Strategic Issues Group have reviewed the public submissions and have made recommendations to the Workplace Relations Ministers’ Council (WRMC).
We have been advised by SWA that the WRMC endorsed the Model OHS Bill on 11 December 2009.
We include below the key amendments made to the Model OHS Bill which were endorsed by the WRMC following the public comment period:
- adoption of the definition of “officer” in accordance with the Corporations Act 2001 and the definition of “due diligence” to clarify officers’ duties
- a duty for the persons conducting a business or undertaking (PCBU) to consult not only with workers directly affected by the health and safety matter, but with other duty holders who have a duty in relation to the same matter
- the requirement for a PCBU to provide training to a health and safety representative (HSR) within three months of a request for training
- removal of compensation orders as a sentencing option
- removal of requirements for union right of entry which are already prescribed under the Fair Work Act 2009
- restructuring of the most serious category of offence to a reckless endangerment offence when a duty holders’ conduct has exposed a person to a risk of death or serious injury of another person
- monetary penalties, not penalty units, used to ensure consistency between jurisdictions
- a 14 day timeframe for commencing negotiations between a PCBU and workgroup
- allowing a PCBU to refuse entry on “reasonable grounds” to a person chosen by HSR to provide assistance, if no relevant assistance could be provided by the nominated person
- being subject to a criminal penalty regime, except in relation to right of entry offences in Part 7. Right of entry offences in Part 7 would be subject to a civil penalty regime consistent with that in the Fair Work Act 2009. A framework will need to be established for civil penalties, and
- penalties for the non-duty of care offences for corporations, ranging from a maximum of $500,000 for serious breaches to a maximum of $10,000 for minor administrative breaches.
By September 2010, model regulations for all other OHS matters including matters covered in existing OHS standards will be developed and released for public comment between November 2010 and January 2011.
The WRMC will then review the Model Regulations in June 2011.
All States and Territories have agreed to enact the model OHS Act and regulations (including transitional arrangements) by December 2011.
We will continue to keep you updated as the harmonisation process progresses.