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National OH&S Laws: Getting Prepared

14 April 2011


National OH&S Laws: Getting Prepared

Kirryn West, Associate and Victoria Broomfield, Paralegal

From 1 January 2012 occupational health and safety (“OH&S“) legislation will be “harmonised,” creating a uniform set of laws and safety standards intended to establish a nationally-consistent OH&S scheme. This harmonisation will represent one of the most significant changes to the OH&S landscape since the release of the Robens Report in 1972.

Currently, the states, territories and the Commonwealth operate under different OH&S legislation, regulations and codes of practice, which presents a particular conundrum for multi-state businesses, where costly company time may be currently spent interpreting each jurisdiction’s paticular requirements.

A nationally-consistent OH&S scheme is expected to benefit organisations by reducing the time spent interpreting and complying with complex legislation, regulations and codes of practice across multiple states, and will consequently provide a more cost-effective system and a much needed simplification of administrative processes.

With the implementation of new OH&S legislation less than nine months away, organisations will need to begin considering how this new legislation will affect their organisation.

The OH&S Harmonisation Process

The development of uniform OH&S legislation has been the subject of many government reviews and commissions since the 1990s. However, in 2007, the Rudd Government promised that, if elected, it would harmonise OH&S legislation and streamline the nine OH&S jurisdictions to create a uniform approach.

The OH&S harmonisation process formally commenced in 2008 with all states and territories (which at that time were all Labor governments) agreeing to co-operate and pass model OH&S legislation to be implemented by 1 January 2012.

To assist with the co-ordination of the OH&S harmonisation process, the Federal Government created a new national body, Safe Work Australia. This organisation, in conjunction with the Workplace Relations Ministers’ Council, has been responsible for the drafting and review of model OH&S legislation, regulations and codes of practice.

OH&S Harmonisation – the Key Changes

The model OH&S legislation, which has been approved by the Workplace Relations Ministers’ Council, aims to provide organisations with certainty around the key features of the new legislation.

The key features of the model OH&S legislation include:

  • Primary Duty of Care: a primary duty of care to ensure health and safety in the workplace will be imposed on a “person conducting a business or undertaking”. The move away from imposing the primary duty of care on employers (which is the current approach) is designed to reflect the changing nature of work relationships. It is expected that as a result of this change a broader range of people will have a primary duty of care under OH&S legislation.
  • Standard of Care: a person conducting a business or undertaking has an obligation to ensure health and safety as far as reasonably practicable. This standard of care represents a significant change in Queensland and New South Wales jurisdictions where the standard imposes a more stringent duty whereby the employer “must ensure” the welfare of all workers.
  • Increased Penalties: there will be significant increases to the maximum penalties under the new legislation. There will be three categories of penalties with the most serious category, category 1, attracting a maximum penalty of $3 million for a corporation and $600,000 and 5 years’ imprisonment for an individual in breach of the legislation.
  • Union Prosecution: the ability for unions to prosecute organisations or individuals for breaches of the legislation will be removed (although NSW has indicated that it intends to amend the model OH&S legislation so that unions may retain the right to prosecution).
  • Positive Obligations: the model OH&S legislation will impose a positive obligation on the officers of an organisation to exercise due diligence in ensuring that their company meets its safety obligations. The OH&S legislation sets out a non-exhaustive set of steps that an officer must comply with to discharge their obligations.
  • Consultation Obligations: while consultation obligations have always existed, the obligations have generally been confined to consultation between employers and employees. Under the new model OH&S legislation a person conducting  a business or undertaking will now have an obligation to consult with “workers.” This will require consultation with a broader range of parties such as contractors, subcontractors and employees of labour hire companies.

Reducing your OH&S Risk Exposure

The new OH&S legislation is no less onerous than current OH&S standards, and in fact, the significant increase in penalties should send a clear message to persons conducting a business or undertaking that they must take their OH&S obligations extremely seriously.

In our view, the new OH&S legislation will result in significant changes and all employers and persons conducting a business or undertaking should ensure they have the necessary checks in place to comply with present and future obligations. The checklist below will assist you in ensuring that the correct procedures are in place.

It is hoped that OH&S harmonisation will improve health and safety outcomes for employees, reduce compensation costs, and simplify administrative processes in businesses across Australia. In particular, this new legislation is designed to benefit those who conduct business across multiple states and the employees working alongside them.

Individual directors and managers should be ready, willing and able to meet the duty imposed by the new “due diligence” test, providing appropriate safety management systems, and ensuring that all staff members are properly informed of the impending changes.

OH&S Harmonisation Checklist

  1. Ensure familiarity with the new OH&S obligations – ensure all employees and persons involved with the management or control of the workplace and have attended training on the legislation, the expanded obligations, the codes of practice and any new procedures in place. Attendance at this training should be compulsory and records of attendance should be kept.
  2. Revise contracts and arrangements with third parties to ensure these contractors (for example labour-hire companies) are contractually required to comply with OH&S obligations and that due diligence can be shown.
  3. Implement clear procedures for carrying out and documenting risk assessments and complying with risk management obligations. This includes ensuring assessments are carried out on a regular basis, discussing the findings with management and taking steps to remedy any risks. All of these steps should be documented.
  4. Update your safety notice boards in the workplace.They should contain details of the upcoming changes and details on the new regulations and codes of practice.
  5. Promulgate accident books in prominent locations and employees, contractors and visitors alike should be trained and encouraged to report any risks or suspected breaches.
  6. Update dispute resolution procedures to allow labour-hire workers, volunteers and contractors to raise any concerns they may have about risks or breaches of OH&S laws.
  7. Introduce processes to facilitate constructive discussions with union officials about OH&S issues. The union rights of entry will expand after 1 January 2012. Unions will have the power not only to investigate incidents, but to advise and consult with workers about OH&S issues. You should ensure your policies are up-to-date.
  8. Educate company directors/officers as to their obligations and that they may escape prosecution if they are able to demonstrate that they took all reasonably practicable steps to prevent the contravention. This requires due diligence to be performed by those who have the capacity to influence the management of a company, including facilities to report and review OH&S breaches and concerns at board level. In order to establish that he or she has used all due diligence, an officer of a company must:
  1. have a current knowledge of work health and safety matters;
  2. understand the nature of the operations of the business and generally of the hazards and risks associated with it;
  3. ensure that the company uses appropriate resources and processes to control or eliminate hazards associated with its operations;
  4. ensure that the company has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
  5. ensure that the body has, and implements, processes for complying with any duty or obligation of the body under the legislation (this might include the obligation to notify incidents, consult with workers, etc.); and
  6. have in place a system for verifying the continued compliance by the business and its obligations.
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