Analysis of new draft Safe Work Act

Following the recent release of the draft model OHS legislation, moving Australia a little closer to national OHS harmonisation, law firm Blake Dawson has issued a brief analysis of the key elements of the new national legislation.

As anticipated, some of the key features of the draft Safe Work Act are as follows:

1. A primary duty of care is imposed on any person conducting a business or undertaking (ie, not limited to employers) to ensure the health and safety of workers and others.
2. The primary duty is qualified by a test of ‘reasonable practicability’.
3. Officers have a positive duty to exercise due diligence in ensuring that the relevant entity complies with its OHS obligations. There is no definition of due diligence in the draft Safe Work Act.
4. A specific duty of care is owed by a person with management or control of the workplace (in whole or in part) to ensure, as far as reasonably practicable, that the workplace, the means of entering and exiting the workplace, anything arising from the workplace and any fixtures, fittings and plant within the workplace are safe and without risks to health or safety.
5. A duty of care is imposed on workers to take reasonable care for their own health and safety and that of others, and to cooperate with any reasonable instruction given by the person conducting the business or undertaking in complying with the model Safe Work Act.
6. Health and Safety Representatives (HSRs) may be elected by employees. HSRs will be able to represent employees in health and safety matters and can, in certain circumstances, issue provisional improvement notices, or exercise other powers. Health and Safety Committees must also be established in a workplace in certain circumstances.
7. Three categories of criminal offences will exist, with proposed penalties of up to $3 million for offences in the most serious category.