The Council of Australian Governments (COAG) recognised the need for national consistency in July 2008 and commenced the process for harmonisation. Australia currently has nine occupational health and safety acts. Employers operating across more than one state or territory often encounter inconsistent regulations, penalties and legal processes in the area of occupational health and safety. The harmonised system is due to commence on 1 January 2012. The model for harmonisation proposed that each jurisdiction adopt a set of laws modelled on the Work Health and Safety Act (Model Act), with some amendments to reflect differences in jurisdictions.
As of December 2011, seven jurisdictions have introduced or passed legislation, with Victoria and Western Australia yet to introduce bills to pass the Model Act. Some of the key features of the Model Act are described below.
The Model Act imposes a broad duty of care held by all persons conducting a business or undertaking (PCBU), as well as more specific duties being imposed on designers, manufacturers and suppliers of plant, supplies and structures.
The duty of care is qualified by the concept of reasonable practicability. Accordingly, factors such as the likelihood, degree of risk, availability, suitability and the cost of safety measures will be relevant to determining whether a PCBU of other duty holders must implement a particular form of risk control.
The duty of care extends to employees, contractors, visitors and any other person who may be exposed to risks.
The Model Act also requires officers of corporation to act with ‘due diligence’ to ensure corporations meet their obligations under the law. The definition of officer is based on the Corporations Act 2001 definition of officer and includes persons who influence or make decisions that affect the whole, or a substantial port, of an entity, including the Crown, but excluding Commonwealth, State and Territory Ministers. Officers might include board members, directors, chief executive officers, chief operating officers, company secretaries, administrators, receivers and liquidators.
Where an entity has a duty or obligation under the Model Act, an officer of that body must exercise due diligence to:
The Model Act and Model Regulations contain significantly higher penalties than existing laws. The Model Act contains three categories of offences.
Category 1 applies where there has been reckless conduct exposing an individual to the risk of death, serious illness or injury.
Category 2 offences arise where there has been a failure to comply with the OHS duty, exposing an individual to the risk of death, serious injury or illness, but without the element of recklessness.
Finally, Category 3 applies where there has been a breach of a health and safety duty but there is no risk of death, serious injury or illness, an example being a minor injury.
|1||$3 mil||$600,000 (5 years Jail)||$300,000 (5 years Jail)|
|2||$1.5 mil||$300,000 (No Jail)||$150,000 (No Jail)|
|3||$500,000||$100,000 (No Jail)||$50,000 (No Jail)|
Where a Company is liable for an offence, both the Company and an Officer may be liable for a civil penalty, while the Officer may also be liable for imprisonment. Similarly, a worker could be imprisoned as a result of conduct which causes a Category 1 offence.
Employees are entitled to be consulted about health and safety matters and to be represented by health and safety representatives and unions.
A significant new feature of the Model Work Health & Safety Regulations, is that every business must be able to demonstrate that it has attempted so far as is reasonably practicable, minimize risks to safety and that to the extent that safety measures are implemented that these are regularly reviewed.
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This Technical Bulletin has been prepared in collaboration with Paul Ronfeldt – Partner at Thomsons Lawyers.
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