National Harmonisation: Model OHS Laws Released

Article by Michael Tooma, Aaron Anderson and Alena Titterton

The highly anticipated draft Model OHS Laws were released on 28 September 2009, giving us our first glimpse of what the harmonised regime may look like.

The objectives of the Model OHS Laws are to enable uniform, equitable and effective safety standards for all workers, addressing the compliance and regulatory burdens of employers, including those in the tourism and hospitality industry, operating in more than one jurisdiction.

While reducing the compliance burden for employers may have been the intention, the Model OHS Laws in practice may not have that effect.

Duties of care

Under the Model OHS Laws, a person conducting a business or undertaking will be required to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by the person and workers whose activities are influenced or directed by the person.

That general duty will include but not be limited to:

• providing and maintaining:
• • a safe and healthy work environment;
  • safe plant and structures; and
  • safe systems of work;
• ensuring safe use, handling, storage and transport of plant, structures and substances;
• providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
• providing any information, training, instruction or supervision that is necessary; and
• ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.

Importantly, the new approach also has the potential to capture complex corporate structures since holding companies and management companies may still be performing a relevant business or undertaking for the purpose of the legislation.

Duplication with respect to specific duties

Under the Model OHS Laws, more than one person can be a person conducting a business or undertaking at any given workplace and each person must discharge their duty with respect to the duty of care, incident report and consultation. This potentiality could create significant duplication of functions with multiple persons being obliged to, for example, report the same incident or consult with workers.

Civil liability

Most of the current State and Territory OHS legislation contain provisions overriding the general rule at common law that unless a contrary intention appears, legislation which imposes duties with respect to safety will be construed as conferring a right of civil action. No such provision has been included in the Model OHS Laws.

Along with the broader duty of care, it appears that the Model OHS Laws will provide an expansion of the types of claims which may be made under the OHS legislation, effectively allowing rights for civil claims under the Model OHS Laws so that those who conduct businesses or undertakings will now need to be concerned with the possibility of other parties taking civil actions for breaches of OHS legislation.

Union right of entry

The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth. The Model OHS Laws give unions not only the power to investigate incidents but also to consult with and advise workers in relation to OHS matters.

Under the Model OHS Laws, unions will have the right to enter workplaces for the purpose of inquiring into suspected contraventions of OHS laws that relate to or affect a worker who is a member of the union or who is eligible to be a member of the union. The right does not require an actual breach, being triggered by mere suspicion of the breach, provided that the suspicion is held reasonably.

The Model OHS Laws require no prior notice to be provided to persons conducting the business or undertaking of the exercise of the right in respect of a suspected breach. The union official will merely be required to notify the person conducting the business or undertaking and the person with management or control of the workplace as soon as reasonably practicable after exercising the right of entry.

Penalties

The Model OHS Laws introduce three categories of offences with the highest category attracting a maximum penalty of $3 million. These are the proposed penalties for breaches of the safety duties:

Further, in an attempt to "fill the gap", Safe Work Australia has adopted an approach which provides for further additional categories of which sit below the general duties penalties structure.

Implications

Businesses needs to be aware of the substantial changes proposed to be introduced by the Model OHS Laws, including an expansion of the types of claims available, a duplication of several duties, broader union right of entry powers and new penalty
categories and any continued obligations under State and Territory OHS law. If the model laws are adopted across each jurisdiction as intended by 2011, they will impact on tourism and hospitality operations nationally, rather than operators having to deal with separate OHS regimes across different states and territories.

Safe Work Australia is accepting public submissions on the draft Model OHS Laws. The consultation period is open for 6 weeks. The closing date for written submissions on the Model OHS Laws is 9 November 2009.

After the public consultation period, the Model OHS Laws will be finalised for consideration by the Workplace Relations Ministers' Council at the December 2009 meeting.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.