Harmonisation of Occupational Health and Safety laws Julia Collins

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1. Harmonisation of Occupational Health and Safety laws Julia Collins

2. 2 Overview Harmonisation process Key elements of the model OHS Act Issues for public comment Moving forward

3. 3 How will harmonisation be achieved? Limited success in previous efforts to improve national consistency in OHS laws through the adoption of national OHS standards and codes of practice New approach to harmonisation consisting of: Intergovernmental Agreement on OHS reform, committing all States, Territories and the Commonwealth to implementing model OHS laws (a model Act and regulations) by 2011, supported by model codes of practice) and a national compliance and enforcement policy. National Review into Model OHS Laws (completed in January 2009), the establishment of the Safe Work Australia, which has responsibility to develop the model OHS legislation. States and territories are responsible for making and enforcing their own OHS laws. Although all primary OHS legislation across Australia draws on a similar approach for regulating workplaces based on the Roben‘s model, there are some differences in how this is applied in OHS Acts and considerable differences in the regulations under these Acts. National efforts since the mid 1980s to make OHS legislation more consistent, with limited success. No binding obligation to conform to these requirements, therefore inconsistency remains. Intergovernmental agreement COAG signed an IGA in July 2008 committing to the harmonisation of OHS legislation Model legislation seen as the most effective way to achieve harmonisation, full package of Act and regulations, requires each state and territory to pass their own laws that align with the model OHS laws. Includes the development of a national compliance and enforcement policy to ensure a consistent regulatory approach across jurisdictions. National Review of OHS laws Conducted by an independent panel Two reports, 232 recommendations on the optimal structure and content of a model OHS Act Safe Work Australia Established as a new independent body to replace the ASCC, currently an executive agency, SWA Council consists of representatives of all States and territories, the AI Group, ACCI and ACTU Safe Work Australia Bill passed in September 2009 to establish Safe Work Australia as an independent statutory agency IGA includes joint funding of Safe Work Australia, may lead to stronger commitment to progress harmonisation work Key functions of Safe Work Australia include: developing national model OHS legislation developing national policy on OHS and workers compensation collecting & analysing workplace injury and disease data undertaking research to inform the development and evaluation of OHS and workers’ compensation policy advising the Workplace Relations Ministers’ Council on OHS and workers’ compensation arrangements, and driving national communications strategies to raise awareness of health and safety at work. States and territories are responsible for making and enforcing their own OHS laws. Although all primary OHS legislation across Australia draws on a similar approach for regulating workplaces based on the Roben‘s model, there are some differences in how this is applied in OHS Acts and considerable differences in the regulations under these Acts. National efforts since the mid 1980s to make OHS legislation more consistent, with limited success. No binding obligation to conform to these requirements, therefore inconsistency remains. Intergovernmental agreement COAG signed an IGA in July 2008 committing to the harmonisation of OHS legislation Model legislation seen as the most effective way to achieve harmonisation, full package of Act and regulations, requires each state and territory to pass their own laws that align with the model OHS laws. Includes the development of a national compliance and enforcement policy to ensure a consistent regulatory approach across jurisdictions. National Review of OHS laws Conducted by an independent panel Two reports, 232 recommendations on the optimal structure and content of a model OHS Act Safe Work Australia Established as a new independent body to replace the ASCC, currently an executive agency, SWA Council consists of representatives of all States and territories, the AI Group, ACCI and ACTU Safe Work Australia Bill passed in September 2009 to establish Safe Work Australia as an independent statutory agency IGA includes joint funding of Safe Work Australia, may lead to stronger commitment to progress harmonisation work Key functions of Safe Work Australia include: developing national model OHS legislation developing national policy on OHS and workers compensation collecting & analysing workplace injury and disease data undertaking research to inform the development and evaluation of OHS and workers’ compensation policy advising the Workplace Relations Ministers’ Council on OHS and workers’ compensation arrangements, and driving national communications strategies to raise awareness of health and safety at work.

4. 4 Harmonisation process 18 May 2009: Workplace Relations Ministers’ Council (WRMC) made decisions on the optimal structure and content of a model OHS Act, agreeing to the majority of recommendations of the National OHS Review Safe Work Australia has developed the model OHS Act in accordance with WRMC decisions, providing drafting instructions to Parliamentary Counsels’ Committee 25 September 2009: WRMC endorsed the exposure draft of model Act and key administrative regulations for public comment, and reaffirmed the policy framework that they determined in May 2009. the Workplace Relations Ministers’ Council also agreed to a small number of variations to their previous responses to the National OHS Review recommendations, which have been included in the exposure draft of the model OHS Act. These variations have been made to ensure a consistent application of policy throughout the draft model Act and to address practical implementation issues identified during the drafting process.the Workplace Relations Ministers’ Council also agreed to a small number of variations to their previous responses to the National OHS Review recommendations, which have been included in the exposure draft of the model OHS Act. These variations have been made to ensure a consistent application of policy throughout the draft model Act and to address practical implementation issues identified during the drafting process.

5. 5 Public comment Exposure draft of model Act and key administrative regulations Discussion Paper Regulatory Impact Statement Submissions emailed to [email protected] Closes 9 November 2009 Seeking comment on areas where policy position has not been settled and on any practical implementation issues

6. 6 Structure of the model OHS Act The model Act is structured to as recommended in the National OHS Review, so that important provisions directly relevant to persons who have duties and rights are prominently located in the first parts of the Act.The model Act is structured to as recommended in the National OHS Review, so that important provisions directly relevant to persons who have duties and rights are prominently located in the first parts of the Act.

7. 7 Scope and application The Act binds the Crown Applies to all industries unless specifically excluded at jurisdictional level and justified to be separate Requires protection of the health and safety of any person—including the wider public—from exposure to hazards and risks that arise from work. Because multiple OHS Acts will continue to be a feature of the harmonised system, we think that it is necessary to reflect this reality in the model Act and therefore allow jurisdictions to insert local provisions to establish the relationship between the model Act and any other Acts in the relevant jurisdiction. This arrangement is subject to the agreement that separate and specific safety-related laws should only continue where they have been objectively justified. Keep a work-related focus in the objectives of the Act, taking care to avoid over-extending the application of the model Act into public health or safety. For some jurisdictions, there will be provision to allow the operation of the model Act to extend into areas such as high hazard plant and hazardous chemicals (dangerous goods) in non-workplace areas, to enable the scope of current OHS Acts to continue (and not leave gaps in legislative coverage). Because multiple OHS Acts will continue to be a feature of the harmonised system, we think that it is necessary to reflect this reality in the model Act and therefore allow jurisdictions to insert local provisions to establish the relationship between the model Act and any other Acts in the relevant jurisdiction. This arrangement is subject to the agreement that separate and specific safety-related laws should only continue where they have been objectively justified. Keep a work-related focus in the objectives of the Act, taking care to avoid over-extending the application of the model Act into public health or safety. For some jurisdictions, there will be provision to allow the operation of the model Act to extend into areas such as high hazard plant and hazardous chemicals (dangerous goods) in non-workplace areas, to enable the scope of current OHS Acts to continue (and not leave gaps in legislative coverage).

8. 8 The duties of care The primary duty of care will apply to all persons who conduct a business or undertaking (includes employers, self-employed and whether or not the business is undertaken for gain or reward). This would cover new and evolving work arrangements and extend the duty beyond the traditional employer and employee relationship. Additional classes of duty holders: Persons with management or control of workplace areas Designers, manufacturers, importers, suppliers of plant, substances and structures, installers, Makes it clear that they have duties The primary duty of care will apply to all persons who conduct a business or undertaking (includes employers, self-employed and whether or not the business is undertaken for gain or reward). This would cover new and evolving work arrangements and extend the duty beyond the traditional employer and employee relationship. Additional classes of duty holders: Persons with management or control of workplace areas Designers, manufacturers, importers, suppliers of plant, substances and structures, installers, Makes it clear that they have duties

9. 9 Common features of all duties of care The duties are non-delegable A person can have more than one duty by virtue of being in more than one class of duty holder More than one person can concurrently owe the same duty If more than one person has a duty for the same matter, then each person: retains responsibility for their duty in relation to the matter must discharge their duty to the extent the matter is within the person’s capacity to influence or control, and must consult, cooperate and co-ordinate activities with all other persons who have a duty in relation to the same matter. The conventional three-step risk management process of hazard identification, risk assessment and risk control is mandated by all jurisdictions in some form in their regulations. Clause 16 of the draft model Act (model Act) contains a ‘principle of risk management’ that requires duty holders to eliminate or minimise hazards and risks to health and safety, so far as is reasonably practicable, without specifically mandating that the duty holder undertake formal hazard identification and risk assessment. In addition, cl 18 of the model Act contains the primary duty of care that requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers (and other persons in subclause 18(3)). Risk management is implicit in the concept of reasonably practicable.The conventional three-step risk management process of hazard identification, risk assessment and risk control is mandated by all jurisdictions in some form in their regulations. Clause 16 of the draft model Act (model Act) contains a ‘principle of risk management’ that requires duty holders to eliminate or minimise hazards and risks to health and safety, so far as is reasonably practicable, without specifically mandating that the duty holder undertake formal hazard identification and risk assessment. In addition, cl 18 of the model Act contains the primary duty of care that requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers (and other persons in subclause 18(3)). Risk management is implicit in the concept of reasonably practicable.

10. 10 Persons conducting a business or undertaking Must ensure, so far as is reasonably practicable, the health and safety of workers while they are engaged at work in the business or undertaking, and that other persons are not put at risk from the conduct of the business or undertaking Who is a person conducting a business or undertaking? ‘Person’ includes a body corporate, unincorporated body or association and a partnership Applies to activities whether conducted alone or together with others, for profit or not for profit, with or without engaging workers Intended to capture the broad range of work relationships and business structures currently being used Business or undertaking does not extend to a person’s private or domestic activities or to ‘volunteer associations’ (as defined) Are there any other types of activities or undertakings that should be specifically included or excluded from application of the OHS Act? Probably the most significant conceptual change from the majority of current OHS Acts. Captures self employed persons. Discussion document includes examples of who could be captured under the definition of a person conducting a business or undertaking. ‘Reasonably practicable’ is defined in the model Act. Based on, but enhances, definition in Victoria OHS Act: - refers to what can reasonably be done - refers to ‘weighing up’ relevant matters, including the five identified, and - will also develop an interpretative document to provide guidance to duty holders about the application of ‘reasonably practicable’ and how it is linked with risk management. Five matters listed are: 1) the likelihood of the hazard or the risk concerned occurring 2) the degree of harm that might result from the hazard or the risk 3) what the person concerned knows, or ought reasonably to know, about— a) the hazard and the risk b) ways of eliminating or minimising the hazard or the risk 4) the availability and suitability of ways to eliminate or minimise the hazard or the risk 5) the cost of eliminating or minimising the hazard or the risk. Probably the most significant conceptual change from the majority of current OHS Acts. Captures self employed persons. Discussion document includes examples of who could be captured under the definition of a person conducting a business or undertaking. ‘Reasonably practicable’ is defined in the model Act. Based on, but enhances, definition in Victoria OHS Act: - refers to what can reasonably be done - refers to ‘weighing up’ relevant matters, including the five identified, and - will also develop an interpretative document to provide guidance to duty holders about the application of ‘reasonably practicable’ and how it is linked with risk management. Five matters listed are: 1) the likelihood of the hazard or the risk concerned occurring 2) the degree of harm that might result from the hazard or the risk 3) what the person concerned knows, or ought reasonably to know, about— a) the hazard and the risk b) ways of eliminating or minimising the hazard or the risk 4) the availability and suitability of ways to eliminate or minimise the hazard or the risk 5) the cost of eliminating or minimising the hazard or the risk.

11. 11 Officers Officers to exercise due diligence to ensure the entity of which they are an officer complies with their duty of care Volunteers and local government councillors are immune from prosecution for offences committed under the model Act in their capacity as an officer Modified Corporations Act 2001 definition of ‘officer’ Does the definition clearly capture those who should have officer duties under the OHS Act? Positive duty of care – a new way of expressing officers responsibilities under current law: Currently most OHS Acts attribute liability to officers where a corporation is in breach of a duty and they have a reverse onus of proof to show that they did what was reasonably practicable or that they had no influence in relation to the breach. Key differences: no attributed liability not reliant on guilt of organisation ‘Due diligence’ standard will not be defined as is relatively well understood in law in the context of obligations of officers. It means officers will need to be proactive toward organisational compliance. Positive duty of care – a new way of expressing officers responsibilities under current law: Currently most OHS Acts attribute liability to officers where a corporation is in breach of a duty and they have a reverse onus of proof to show that they did what was reasonably practicable or that they had no influence in relation to the breach. Key differences: no attributed liability not reliant on guilt of organisation ‘Due diligence’ standard will not be defined as is relatively well understood in law in the context of obligations of officers. It means officers will need to be proactive toward organisational compliance.

12. 12 Workers and others Workers Must take reasonable care for themselves and others Must co-operate with the person conducting the business or undertaking regarding OHS Other persons at the workplace Duty similar to workers visitors, public and those authorised to enter the workplace Definition of workers broad - to include any person who works, in any capacity, in or as part of the business or undertaking. Definition of workers broad - to include any person who works, in any capacity, in or as part of the business or undertaking.

13. 13 Volunteers Volunteer means a person who is acting on a voluntary basis (irrespective of whether they receive out-of-pocket expenses) Model Act protects volunteers in their capacity as workers Ensures that volunteers are not discouraged from participating in community-based activities ‘Volunteer associations’ are not treated as businesses or undertakings Volunteers have duties of care as officers or workers but cannot be prosecuted for contravening those duties Is the treatment of volunteers under the model Act appropriate?

14. 14 Risk Management Principle of Risk Management Model Act requires duty holders, in ensuring health or safety, to eliminate hazards and risks as far as reasonably practicable, or minimise as far as reasonably practicable Does not mandate the process of identifying hazards, assessing risks and controlling risks through the hierarchy of control Model Act is focussed on the outcome, not the process Risk management is implicit in the concept of ‘reasonably practicable’ Risk Management process - proposal Model Regulations would require hazard identification, risk assessment and risk control only where the complexity of the hazard or risk is such that appropriate decisions about control are not likely to be made without conducting a systematic analysis. A general risk management process would be provided in a National Code of Practice. The location and application of risk management processes to specific hazards and duty holders varies considerably between jurisdictions. Most Australian OHS regulations include obligations to conduct hazard identification, risk assessments and risk control for specific hazards (e.g. hazardous substances, confined spaces, manual tasks, falls from heights, mining). The Workplace Relations Ministers’ Council (WRMC) agreed with Recommendation 136 of the National OHS Review, that ‘The model Act should not require a process of hazard identification and risk assessment, or mandate a hierarchy of controls, but that the regulation-making power in the model Act should allow for the process to be established via regulation, with further guidance provided in a code of practice’. Model Regulations would not include a general requirement to apply the risk management process for all risks, but would focus on controlling the risks, rather than on assessing the risk. The location and application of risk management processes to specific hazards and duty holders varies considerably between jurisdictions. Most Australian OHS regulations include obligations to conduct hazard identification, risk assessments and risk control for specific hazards (e.g. hazardous substances, confined spaces, manual tasks, falls from heights, mining). The Workplace Relations Ministers’ Council (WRMC) agreed with Recommendation 136 of the National OHS Review, that ‘The model Act should not require a process of hazard identification and risk assessment, or mandate a hierarchy of controls, but that the regulation-making power in the model Act should allow for the process to be established via regulation, with further guidance provided in a code of practice’. Model Regulations would not include a general requirement to apply the risk management process for all risks, but would focus on controlling the risks, rather than on assessing the risk.

15. 15 Other obligations Notification to the regulator of serious incidents arising from the conduct of the business or undertaking Obligation to preserve incident site Offence provisions relating to undertaking activities without relevant authorisations – licences, permits and registrations, including Offence to contravene any conditions placed on authorisations Directing or allowing a worker to contravene the provisions

16. 16 Workplace consultation, participation and representation Duty to consult with workers Qualified by ‘reasonably practicable’ Includes what consultation involves, as well as how and when it should be undertaken. Health and Safety Representatives for work groups Must be established on request from a worker Can direct unsafe work to cease and issue provisional improvement notices, but only if trained Includes disqualification provisions Health and Safety Committees Must be established within 2 months where requested by HSR, or 5 or more workers Issue resolution procedures Principle is to resolve OHS issues in the workplace as far as possible Default procedures in regulations If issue not resolved, can be referred to the regulator for resolution A review of the inspector’s decision can be sought Provisions protecting workers or prospective workers against discrimination Right to cease unsafe work Consultation This duty extends beyond the duty of employers to consult their employees, as it also covers consultation with other kinds of workers e.g. contractors. The scope of this duty depends on the circumstances of each case, such as the impact of the safety matter in question, and the nature of the relationship between the relevant persons. For example, the amount of consultation required depends on the importance of the OHS decision being made. The more important the OHS decision, the more consultation is required. This approach also recognises there may be exceptional circumstances in which the usual consultation procedures cannot apply, e.g. during an emergency, or because a person who must be consulted is on extended leave. HSR’s The model Act encourages and facilitates the participation of workers in health and safety by providing for the election of health and safety representatives (HSRs) and prescribing the functions and entitlements of HSRs. The model Act includes the process for negotiating and determining work groups to facilitate the representation of workers in the work group by one or more HSRs. If negotiations fail, any party to the negotiations may refer the issue to the regulator for determination. Provides a basis for a Court or Tribunal upon application to disqualify a HSR where the HSR has performed a function for improper purpose or has disclosed information they have acquired for a purpose other than one connected with that role. An application can be made by the regulator or a person who has been detrimentally affected by the actions of the health and safety representative. Consultation This duty extends beyond the duty of employers to consult their employees, as it also covers consultation with other kinds of workers e.g. contractors. The scope of this duty depends on the circumstances of each case, such as the impact of the safety matter in question, and the nature of the relationship between the relevant persons. For example, the amount of consultation required depends on the importance of the OHS decision being made. The more important the OHS decision, the more consultation is required. This approach also recognises there may be exceptional circumstances in which the usual consultation procedures cannot apply, e.g. during an emergency, or because a person who must be consulted is on extended leave. HSR’s The model Act encourages and facilitates the participation of workers in health and safety by providing for the election of health and safety representatives (HSRs) and prescribing the functions and entitlements of HSRs. The model Act includes the process for negotiating and determining work groups to facilitate the representation of workers in the work group by one or more HSRs. If negotiations fail, any party to the negotiations may refer the issue to the regulator for determination. Provides a basis for a Court or Tribunal upon application to disqualify a HSR where the HSR has performed a function for improper purpose or has disclosed information they have acquired for a purpose other than one connected with that role. An application can be made by the regulator or a person who has been detrimentally affected by the actions of the health and safety representative.

17. 17 Role of Unions OHS permit holders have right of entry to a workplace Without notice to ‘inquire’ into suspected contravention 24 hours notice for advice or consultation 24 hours notice to inspect ‘employee records’ or records relating to a suspected contravention subject to permit and member eligibility requirements, protections and accountability drafted to be generally consistent with the right of entry provisions under the Fair Work Act.

18. 18 The regulator and inspectors Role in providing information and advice Regulator able to accept enforceable undertakings as an alternative to prosecution Inspectors to have all current powers, protections and accountability: broad powers of entry to workplaces can issue improvement, prohibition, non-disturbance and infringement notices Act enables cross-jurisdictional appointment of inspectors Inspectors can assist in issue resolution Requirement to answer questions or provide a document Information cannot be used as evidence against the person in proceedings Inspectors must give warning about self incrimination Review of decisions of regulator and inspectors Two stage process of internal review (of inspectors decisions) and external review

19. 19 Prosecutions Prosecution to be brought within 2 years or one year after an inquest, whichever is the later Only a public official may prosecute, but any person can seek a review of a decision of regulator not to prosecute Prosecution to bear the onus of proving all elements of an offence for breach of a duty of care Appeals process, victim impact statements, sentencing guidelines to be dealt with outside the model OHS Act

20. 20 Penalties There is a wide disparity in the sentences under Australian OHS Acts for breaches of duties of care - the highest fine is 10 times greater than the lowest. Maximum terms of imprisonment vary from 2 years in WA to 7 years in the ACT. Penalties for duties of care – criminal offences Offence based on risk and culpability rather than outcome, not requiring actual harm. Category 1 – most serious breaches, for an offence of recklessly endangering a person to risk of death or serious injury Category 2 – high level of risk or serious harm but without recklessness Category 3 – breach of duty without high risk of serious harm or recklessness ‘gross negligence’ removed from offences – cut across criminal laws and manslaughter offencesThere is a wide disparity in the sentences under Australian OHS Acts for breaches of duties of care - the highest fine is 10 times greater than the lowest. Maximum terms of imprisonment vary from 2 years in WA to 7 years in the ACT. Penalties for duties of care – criminal offences Offence based on risk and culpability rather than outcome, not requiring actual harm. Category 1 – most serious breaches, for an offence of recklessly endangering a person to risk of death or serious injury Category 2 – high level of risk or serious harm but without recklessness Category 3 – breach of duty without high risk of serious harm or recklessness ‘gross negligence’ removed from offences – cut across criminal laws and manslaughter offences

21. 21 Proposed penalties for other offences Category 1-3 penalties for breaches of duties of care Currently all contraventions are criminal offences Should some non-duty of care offences be subject to civil penalties?

22. 22 Where to from here? December 2009: Submit model Act for WRMC consideration Develop Explanatory Memorandum 2009-2010: Development of model OHS regulations Consolidated draft regulations released for public comment in September 2010 Development of codes of practice Development of a national compliance and enforcement policy Mid-2011: Model regulations to WRMC for agreement December 2011: All jurisdictions to have adopted model laws

23. 23 How will the model laws be implemented? The Commonwealth, States and Territories can either replace their current OHS Act by enacting a new Act or amend their current OHS Act to align with the model laws. This allows jurisdictions to implement the legislation in the most convenient and effective way. The model OHS Act only allows for local variation in the model provisions where necessary to conform to the local legislative environment.

24. 24 How will the implementation be monitored? The harmonisation of OHS is one of COAG’s priorities under the National Partnership Agreement to Deliver a Seamless National Economy Implementation is being monitored through the COAG Reform Council. Each jurisdiction must report annually to the COAG Reform Council on its progress against key milestones. In order to qualify for National Partnership Payments, the jurisdictions must implement the model OHS laws by December 2011.

25. 25 How will harmonisation be maintained? The IGA requires that, if any jurisdiction proposes an amendment that impacts on the operation of the model OHS laws, the amendment must be brought to WRMC for decision at the national level. If WRMC agree to the proposed amendment, then all jurisdictions must adopt the amendment in order to maintain national consistency. The model OHS laws are to reviewed once every five years (Recommendation 232)

26. 26 How will the model law improve OHS regulation? Wider application Stronger rights, protections and accountability More effective basis for national cooperation and use of resources Less need to amend the laws to address new issues Increase compliance rates and produce better safety outcomes Workers Protections cover all kinds of workers Consistent powers for HSRs, rights to cease unsafe work, rights of entry for OHS permit holders Benefits for mobile workforce through mutual recognition of licenses/permits Business Implementation of model Act should not significantly change current OHS responsibilities Increase certainty, reduce regulatory burden for multi-state businesses Government Reduce duplication and increase regulatory efficiency Business survey conducted by Access Economics for Regulatory Impact Statement to provide quantitative data on compliance costs and safety benefits Implementation of the Model Act will mean some legislative changes for all jurisdictions, but long term benefits of doing so include... Implementation of the Model Act will mean some legislative changes for all jurisdictions, but long term benefits of doing so include...

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