Uniform OHS laws reduce employer liability

By: Graham Gardiner

The Workplace Relations Ministers’ Council (WRMC) has agreed to uniform national occupational health and safety (OHS) laws, in a move

The Workplace Relations Ministers’ Council (WRMC) has agreed to uniform national occupational health and safety (OHS) laws, in a move to reduce employer accountability and restrict union powers.

Following a national report into OHS laws in 2008, the WRMC has considered the review panel’s recommendations, and issued a framework for a national model OHS Act.

While the proposed model will bring changes to virtually all areas of OHS, there are some provisions which are particularly significant for employers.

Previously, reverse onus of proof was contained in some states’ legislation, whereby the employer was required to prove innocence in alleged safety breaches.

Under the proposed changes, it is a requirement that the prosecution should bear the onus proof.

Another positive change for businesses is the removal of unions’ capacity to bring prosecutions for breaches under OHS laws.

In addition, the new model is allowing a system of appeals against finding of guilt in a prosecution, ultimately up to the High Court.

The Australian Institute of Company Directors (AICD) has welcomed the agreement by state and Commonwealth governments to go ahead with the changes.

CEO John Colvin says the agreement will address the inconsistency of OHS laws across jurisdictions, and marks a major step towards achieving a fair system.

"While we do not necessarily agree with every aspect of it, the model national law moves Australia a long way toward an OH&S system that is fair, balanced and consistent," he says.

"It will provide greater certainty and protections for directors, in a way which does not compromise standards for legitimate safety concerns."

Within the framework, the WRMC says workers must take reasonable care for their own health and safety, and cooperate with any reasonable action taken by the person conducting the business.

It has also agreed with the review panel’s recommendation that there should be a primary duty of care imposed on any person conducting a business.

This is subsequently qualified by a test of ‘reasonable practicality’, which means no specific defence is necessary.

Finally, the Council has acknowledged there should be a specific duty of care owed by a person with management or control of the workplace.

They must ensure as far as ‘reasonably practical’ that the workplace, the means of entering and exiting the workplace, fixtures, fittings and plant are safe and without risks.

References to ‘gross negligence’ will be removed from the categories of offences, to avoid crossover with local criminal laws.

The proposed alternative categories are as follows:
  • Category 1: for an offence of recklessly endangering a person to risk of death or serious injury at a workplace
  • Category 2: for circumstances where there was a high level of risk of serious harm but without recklessness
  • Category 3: for a breach of the duty without recklessness or high risk of serious harm.

In the case of category one, maximum penalties can reach $3 million for a corporation, $600,000 for an officer and $300,000 for a worker.

The AICD has been concerned about the risk of liability imposed by "inconsistent and onerous" OHS laws.

It says the existing laws are deterring Australia’s most knowledgeable and experienced directors from serving on boards or establishing new businesses, as well as adversely influencing business decisions on investment and job creation.

So far, the Western Australian Government has not committed to the national framework, according to Colvin.

"If any state opts out it undermines the nationally harmonised system and so reduces the benefits to business of this important reform," he says.

The AICD will be participating in the consultation process with the Government on the draft legislation to be released later this year.

An exposure draft of a model OHS Act will also be released for public comment.

All employers and other duty holders are advised to carefully review the model OHS Act upon its release and consider whether changes need to be made in advance of the laws being enacted.

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