National OHS Review Report released

The National OHS Review Panel's ‘National Review into Model Occupational Health and Safety Laws First Report’ was tabled at the Workplace Relations’ Ministers Council meeting recently.

The report contains the findings and recommendations for what the National OHS Review Panel considers the optimal content of a model OHS Act in the following key areas:

• duties of care (including the identification of duty holders and the scope and limits of duties); and
• the nature and structure of offences, including defences.

Duties of care

The report recommends that there be a primary duty of care imposed on any person who conducts a business or undertaking (whether as an employer, self-employed person, principal contractor or otherwise) for the health and safety of:

• ‘workers’ within an expanded definition that is not limited to a contract of employment or deeming through direct engagement by contracting, referring instead to a broader ‘person who works in a business or undertaking’; and
• others who may be put at risk to their health and safety by the conduct of the business or undertaking.

This recasting of the duty is intended to cover new working relationships beyond the traditional employer/employee relationship, circumventing the need to refer to the employment relationship.

The classes of persons singled out by the report that are to be the subjects of duties of care under a model OHS Act include:

• those with management or control of workplace areas;
• designers of plant, substances and structures;
• manufacturers of plant, substances and structures;
• builders, erectors and installers of structures;
• suppliers and importers of plant, substances and structures;
• OHS service providers;
• officers;
• workers; and
• other persons at the workplace.

The report recommends that there be a statement of principles clearly stated in the OHS Model Act, so that they are clearly understood. In this approach, the report takes a leaf from the current Victorian OHS legislation.

Reasonable practicability

In relation to reasonable practicability, the report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions, except New South Wales and Queensland.

This will be welcomed by the business community in New South Wales and Queensland, who have called for a shift of the burden of proof to prosecutors for some time.

The report takes the sensible view that defining reasonably practicable will provide guidance to duty holders in achieving legislative compliance, noting that case law is not easily accessible to duty holders. The definition is modelled on the definition in the current Victorian Occupational Health and Safety Act 2004; however, it provides greater clarity around the need to weigh up the various elements for doing what is reasonably practicable, including:

• the likelihood of the hazard or risk occurring;
• the degree of harm that may result if the hazard or risk occurred;
• what the duty holder knows, or a person in their position ought reasonably to know, about:
  – the hazard, the potential harm and the risk; and
  – ways of eliminating or reducing the hazard, the harm or the risk;
• the availability and suitability of ways to eliminate or reduce the hazard, the harm or the risk; and
• the costs associated with the available ways of eliminating or reducing the hazard, the harm or the risk, including whether the cost is grossly disproportionate to the degree of harm and the risk.

The authors are not supportive of the inclusion of the element of ‘control’ in the definition of ‘reasonably practicable’ and take the view that the definition should set out principles rather than processes. Arguably, failing to provide processes means that duty holders will still struggle to understand what it is they need to do to fulfil the duty.

The report also suggests different qualifiers for officers, workers and other persons. In relation to officers of corporations, the recommendation is that there be a duty on officers to exercise due diligence to ensure compliance by their company, adopting an approach which is similar to that in the current Victorian legislation. The recommended casting of the officer duty is incident focused rather than system focused and as such is reactive.

The business community will welcome the fact that the onus of proving a failure to meet the standard of due diligence will be on the prosecution under the report’s suggested approach. The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence. In light of the recommendations about the onus of proof in relation to reasonable practicability, there would be no defences under the model OHS Act.

The duty of ‘workers’ under the model OHS Act largely reflects the current duty which is placed on ‘employees’ throughout the jurisdictions. That is, taking reasonable care for their own health and safety and reasonable care that their acts and omissions do not adversely affect the health or safety of others.

Offences

The offences recommended for the model OHS Act would be strictly criminal with the prosecution bearing the criminal standard of proof for all elements of the offence.

The report suggests the use of a three-tiered approach to offences and adopts the Victorian approach of making category one offences indictable and other offences dealt with summarily.

Indictable offences would be heard by a judge and jury (as occurs in Victoria). This represents a departure from the norm in most Australian jurisdictions.

Maximum penalties would significantly increase under the recommended approach. Maximum penalties for the most serious OHS offences would rise to $3 million for corporations; $600,000 for individuals and imprisonment for up to five years.

This would make OHS penalties comparable with penalties for breaches of environmental legislation in Australia. In light of the higher penalties, there are no further penalties recommended for repeat offenders.

The report takes the view that the model OHS Act should provide a system of appeals against a finding of guilt in a prosecution, with appeals ultimately to the High Court of Australia. Such an appeal process will be welcomed.

Concluding thoughts

On the whole, the report's methodology represents picking the preferable provision from existing legislation rather than approaching the challenge of what a model OHS Act should look like with a blank canvas. If there is a jurisdiction which the recommended model most closely resembles, it is clearly Victoria.

The report was officially endorsed by COAG members. However, it remains to be seen whether it will in fact be adopted.

The National OHS Review Panel’s second report is due to be provided to the Workplace Relations Ministers at the end of January 2009.

*Michael Tooma and Alena Titterton are from national law firm Deacons.