The model Act - moving OHS forward

The model Work Health and Safety Act 2010 will not only achieve harmonisation of OHS laws around Australia, it will remove gaps in coverage and drive greater engagement in OHS at all levels within business. The involvement of company officers will be driven by a new positive due diligence obligation.

The 2004 Productivity Commission confirmed the need to cut undue cost from different OHS laws in each jurisdiction. All stakeholders agreed the time had come for harmonising laws.

The process commenced with a National OHS Review by an expert panel, whose recommendations were almost entirely accepted and form the basis of the model Act. These recommendations and the model Act itself aim to provide for uniformity of the law and to make it more effective.

How will it improve OHS?

While retaining the key elements of current OHS laws, the model Act brings significant improvements to the effectiveness of the law to drive good OHS performance, including:

1. Clearer language and improved definitions;
2. Giving greater prominence to duties of care and ‘enabling’ activities such as consultation and issue resolution;
3. Moving away from the employment relationship as the determinant of duties and obligations - making it clear everyone involved in doing or contributing to work will owe a duty of care to those affected by what they do at work;
4. Requiring direct and proactive engagement in OHS by officers, by giving them a positive to ensure corporate compliance;
5. Requiring greater cooperation and coordination between duty holders; and
6. Using enforcement to promote OHS, not just punish - but with greatly increased penalties where justified.

New duties of care

Duties will now be owed by:

• Persons conducting a business or undertaking (PCBU) - company, partnership, government department, sole trader, etc;
• Officers of the PCBU as defined in s9 of the Corporations Act;
• Workers within a business - defined to include employees, contractors, volunteers, student placement and others; and
• ‘Others’ at workplace – eg, visitors, customers, trespassers.

A PCBU will owe a duty of care to direct employees, any ‘worker’ in their business and others affected by what they do.

Compliance by officers will require an understanding of OHS for the business, and active involvement in seeing that OHS is managed and compliance occurs. This will require a proper OHS governance structure, reporting processes and reporting to officers on hazards, risks, strategies and initiatives, not just statistics.

Broadened obligations for consultation

The obligation of employers to consult employees on OHS will be replaced by an obligation of a PCBU to consult all relevant workers.

New obligations will be placed on each PCBU to “consult, cooperate with and coordinate activities with” every other person having a duty over the same matter (the particular work). Depending on circumstances, those involved may include contractors, subcontractors, occupiers of workplaces, suppliers or even customers. It will be particularly relevant to franchising, logistics chains and multiple-contractor arrangements (eg, construction).

New approach to enforcement

Increased criminal penalties, up to a maximum of $3 million, will demonstrate the seriousness of OHS laws. Penalties should be reserved, however, for when they are needed. Enforcement of the law should not only encourage improved OHS performance - it should drive it.

Graduated enforcement provides for advice, then coercive notices, then agreed enforceable undertakings (spending money on OHS initiatives), then prosecution if appropriate. Where guilt is found, alternatives to fines should be considered, including ordering work health and safety projects, training and other measures to provide benefit from the money to be expended by the offender.

Good practice means compliance

The model Act will require what is considered to be good practice in OHS. It will require many to change or supplement procedures, particularly in governance, relationship management and coordination of activities. The law will be clearer and easier to comply with, which should improve OHS outcomes.

* Barry Sherriff is a partner of Norton Rose Australia and was a member of the National OHS Review panel. He is also co-author of Understanding the Model Work Health and Safety Act, CCH, 2010. Sherriff can be contacted on email: barry.sherriff@nortonrose.com or ph: 03 8686 6918.