Another step closer to the model work health and safety laws

Safe Work Australia (SWA), the body charged with developing Australia’s harmonised occupational health and safety laws, met 9 December 2009 to consider amendments to be made to the model Safe Work Act 2009 following the closure of the public consultation period.

While a revised model Act has not yet been publicly released, SWA has indicated that some important amendments were recommended to the Workplace Relations Ministers’ Council (WRMC) when the WRMC met on 11 December. The recommendations were:

• The term ‘occupational health and safety’ be changed to ‘work health and safety’ throughout the model Act;
• A definition of ‘officer’ consistent with the Corporations Act 2001 be adopted rather than the definition currently contained in the model Act;
• The model Act to contain a definition of the term ‘due diligence’;
• A person conducting a business or undertaking (PCBU):
  • will have a duty to consult with both workers and with other duty holders;
  • must provide training to a health and safety representative (HSR) within three months of a request for training;
  • will be required to commence negotiations with a workgroup within 14 days (rather than within a ‘reasonable period’ as the legislation is currently drafted); and
  • will be able to refuse entry on ‘reasonable grounds’ to a person chosen by the HSR to provide assistance if no relevant assistance could be provided by that person;
• Requirements in the model Act for union right of entry which are already prescribed under the Fair Work Act 2009 to be removed;
• Compensation orders as a sentencing option to be removed;
• A Category 1 offence (being the most serious offence) to be restructured to contain the element of ‘reckless endangerment’;
• Penalties to be expressed in monetary amounts rather than penalty units;
• Offences in the model Act to be subject to a criminal penalty regime, with the exception of union right of entry offences, which will be subject to a civil penalty regime consistent with the Fair Work Act 2009; and
• The introduction of a range of penalties on corporations for offences other than duty-of-care offences, which range from a maximum of $10,000 for minor breaches to $500,000 for more serious breaches.

What effect will these changes have?

Some of the recommendations outlined above address key concerns raised by a number of stakeholders during the consultation phase. In particular:

• Adopting the Corporations Act 2001 definition of ‘officer’ will bring the model Act more in line with recommendations made by the national review panel and will likely provide more clarity on who will be considered to be an ‘officer’;
• While many submissions expressed concern about the breadth of the consultation provisions, the recommendation by SWA to impose a positive duty on a PCBU to consult with other duty holders confirms SWA’s view that the scope of consultation required under the model Act is indeed broad. This will likely pose some challenges for PCBUs; and
• SWA appears to have taken into account views expressed by stakeholders that the model Act requires amendment to ensure consistency with the Fair Work Act 2009 in the area of union right of entry.

Where to from here?

In its most recent communiqué, SWA advised that the model provisions were presented to the WRMC for consideration on 11 December. The WRMC may agree or disagree with the SWA’s recommendations. SWA will also seek approval from the WRMC to further refine the model Act by making technical and drafting changes. All refinements to the model Act are to be made and agreed by SWA by 30 March 2010.

Model work health and safety regulations will be drafted during the first half of 2010 and will be available for comment by the OHS Strategic Issues Group of SWA in July 2010. SWA anticipates that the public will have an opportunity to comment on the draft regulations during a four-month public comment period starting in late 2010.

*Lea Constantine, Partner, Blake Dawson.