Draft OH&S laws open for public comment

By: Jason Whittaker

Following last Friday’s ministerial meetings on workplace health and safety, the Australian, State and Territory Governments have taken a step

Following last Friday’s ministerial meetings on workplace health and safety, the Australian, State and Territory Governments have taken a step towards national harmonisation by releasing draft OHS laws.

The suite of documents available for public comment includes a model Act, administrative regulations and consultation Regulation Impact Statement (RIS).

This will reportedly allow individuals and organisations to comment on the potential costs and benefits of the proposed Regulations.

Some of the key features of the draft Safe Work Act are:
  • A primary duty of care is imposed on any person conducting a business or undertaking (ie not limited to employers) to ensure the health and safety of workers and others.
  • The primary duty is qualified by a test of "reasonable practicability".
  • Officers have a positive duty to exercise due diligence in ensuring that the relevant entity complies with its OHS obligations. There is no definition of "due diligence" in the draft Safe Work Act.
  • A specific duty of care is owed by a person with management or control of the workplace (in whole or in part) to ensure as far as reasonably practicable that the workplace, the means of entering and exiting the workplace, anything arising from the workplace and any fixtures, fittings and plant within the workplace are safe and without risks to health or safety.
  • A duty of care is imposed on workers to take reasonable care for their own health and safety and that of others, and to cooperate with any reasonable instruction given by the person conducting the business or undertaking in complying with the model Safe Work Act.
  • Health and Safety Representatives (HSRs) may be elected by employees. HSRs will be able to represent employees in health and safety matters and can, in certain circumstances, issue provisional improvement notices, or exercise other powers. Health and Safety Committees must also be established in a workplace in certain circumstances.
  • Three categories of criminal offences will exist, with proposed penalties of up to $3 million for offences in the most serious category.

The Australia Chamber of Commerce and Industry (ACCI) has welcomed the announcement.

ACCI Chief Executive Peter Anderson says the draft laws can now be tested across a wider range of industry, even though the time frames for doing so are tight.

"While there are important efficiencies from harmonising Australia’s OHS legislation, especially for companies operating across State borders, benefits will only be delivered if the model Act and regulations help improve OHS practices and cultures. This requires rights and obligations to be reasonable, practical and balanced," Anderson says.

He says the draft laws have been modelled on an independent review of the system, and will focus on maintaining the quality of laws in preparation for harmonisation.

"Industry will not use this six-week public comment period to re-open major matters already decided by the independent review. Instead, our focus will be on maintaining high quality OHS systems, addressing industry concerns with some operational issues, and testing the workability of the proposals in different workplace contexts, including small business," he says.

"Getting the content of OHS laws right is just as important as achieving national harmonsation. Most Australian employers are still smaller businesses operating in only one state or territory only."

The development of national OHS laws has been driven by Safe Work Australia, in partnership with the Commonwealth, State and Territory governments.

The Workplace Relations Ministers’ Council agreed to the release of the endorsed exposure draft and supporting documentation for public comment at its meeting on September 25.

Safe Work Australia Council Chair Tom Phillips says this consultation process will ensure the new national OHS laws are relevant and applicable to all Australian workplaces.

"Feedback from businesses, unions and workers will inform the development of the national OHS laws, which will lead to enhanced safety protections for workers and greater certainty for employers," Phillips says.

"This is an opportunity for Australian businesses and individuals to actively participate and voice their opinion on the new laws," he says.

The harmonisation of OHS laws will allow businesses to effectively manage workplace safety and work to one set of laws regardless of which jurisdiction they are operating in.

"This important regulatory reform will reduce the costs borne by inconsistent laws and provide a single national focus for OHS laws."

As part of the public comment process, Access Economics is surveying businesses across a range of sizes, industries and regions in an effort to obtain primary data on compliance costs and safety benefits.

The public comment period will be open for six weeks and will close on November 9.

Copies of the model legislation can be accessed here.

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