After some 16 months of consideration, 226 submissions, and 2 extensions, the Transport and Industrial Relations Select Committee has finally released its report on the Health and Safety Reform Bill.
Based on the reactions in the media, you’d think the Select Committee had undertaken a dramatic rewrite of the Bill since we last saw it in March 2014. So what has the Committee actually changed? Answer: not a great deal – we discuss the key changes below.
Health and safety representatives and committees
Small businesses with fewer than 20 employees, in low-risk sectors, will not be required to have a health and safety representative or committee, even if workers request them. Of course, there is nothing stopping such businesses from voluntarily having such representatives or committees if they so desire.
Whether a business is in a “low-risk” sector will depend upon detailed regulations that the Minister for Workplace Relations has indicated will not be finalised until the Bill comes into force.
This has been perhaps the most controversial change – the Government insisting that this provides “flexibility” while the Opposition has referred to it as “ripping the guts out of the Bill”. We note that whether or not a PCBU (a “Person Conducting a Business or Undertaking”) is required to elect a health and safety representative or have a committee, all PCBUs will have a duty to engage with their workers on matters of health and safety.
The definition of “Officer” (i.e. those individuals within a PCBU who owe due diligence obligations) has been narrowed.
Other than named persons holding specific roles in a PCBU (i.e. directors or partners), Officers’ duties are confined to those who “exercise significant influence over the management of the business or undertaking”.
The classic example (and that given in the Bill itself) is a CEO. However, those individuals who “merely advise or make recommendations” to Officers of a PCBU are not Officers themselves.
The Government has also indicated that it intends to make a change to the Bill to make clear that the extent of an Officer’s duty takes into account the nature of the PCBU, the position of the Officer, and the nature of their responsibilities.
The Committee has made significant changes to the volunteer provisions of the Bill to bring it back in line with the existing Health and Safety in Employment Act 1992.
In essence, a PCBU owes the primary duty to ensure the health and safety of its workers and others, so far as reasonably practicable. A volunteer association, which is where volunteers work together for community purposes and does not have any employees, is not a PCBU.
If a volunteer association has employees, then it is a PCBU. However, the Bill now distinguishes between “casual volunteers” and “volunteer workers” in this situation:
- “Volunteer workers” are those who regularly work for a PCBU with its knowledge and consent, and are integral to the PCBU’s operations. The PCBU owes the primary duty to volunteer workers as if they were any other worker.
- “Casual volunteers” are those who do not fall within the definition of volunteer workers. Specific examples include (but are not limited to) participating in a fundraising activity, assisting with sports or recreation clubs, assisting with activities of an educational institution outside that institution’s premises, and providing care for another person in the volunteer’s home. The health and safety of these volunteers will be covered by the PCBU’s duty to other persons affected by the work of the PCBU.
There had been a lot of press in recent weeks about a potential corporate manslaughter offence being included in the Bill. Despite the chatter, this has not come to fruition.
What happens next?
The (amended) Bill will now go back to Parliament for consideration in the coming weeks. The changes made by the Select Committee have come at a price – the Opposition parties have now signalled they will oppose the Bill and seek to introduce amendments of their own.
Some further amendments are guaranteed – the Government has stated it intends to make certain changes, and the Opposition have already released some of their own proposals. What we do know is that everything is to come into force before 31 October 2017.