Australia has been moving towards harmonised OHS laws, with all states (except WA) having agreed to pass legislation adopting the Model Work Health and Safety Bill to take effect from 1 January 2012.
Australia has been moving towards harmonised OHS laws, with all states (except WA) having agreed to pass legislation adopting the Model Work Health and Safety Bill to take effect from 1 January 2012. However, when and if, all states pass their Bills, there will still be 9 separate jurisdictions operating their own version of the Model Workplace Health & Safety Bill. Harmonisation may exist, but uniformity won’t.
The NSW coalition government surprised most everyone during May by introducing two Bills into Parliament in advance of the Model Work Health and Safety Bill.
The first, the Work Health Safety Bill 2011 largely mirrored the Model Bill. It is intended this Bill, when enacted, will replace the Occupational Health and Safety Act 2000 (NSW) from 1 January 2012. The only real area of contention in this Bill is the removal of health and safety matters from the jurisdiction of the Industrial Court with prosecutions instead being dealt with by the Local and District Courts.
A surprising development was the introduction of the Occupational Health and Safety Amendment Bill 2011. This Bill, if passed, will bring the following significant changes to OHS laws in NSW, ahead of the proposed January 2012 commencement of the harmonised laws by the:
- Removal of the reverse onus of proof that currently exists in NSW by requiring employers to take preventative measures to eliminate or minimise risks as far as is reasonably practicable and putting the onus on the prosecution to prove what was reasonably practicable;
- Removal of director liability laws, so that senior managers and leaders cannot be found personally liable for offences committed by their companies providing they can establish they have exercised due diligence;
- Removal of the right of unions to prosecute employers for breach of the OHS Act leaving only WorkCover Inspectors with this right.
What does this mean for NSW employers? Assuming the bills are passed:
- If an incident occurs an immediate investigation must be instigated that focuses on not only the risk (whether or not an injury has occurred), the cause of the risk and any deficiencies in systems that led to the risk eventuating, but a range of “reasonable practicability” factors to address what both corporate and individual duty holders did and could have done to eliminate or minimise the risk;
- If you are an officer of a corporation you must put measures in place now to ensure you can establish that you have exercised due diligence in being aware of OHS matters; the risks associated with your company’s operations; ensuring there are adequate systems in place to eliminate or minimise risks, ensuring the company has adequate processes in place to give notice of incidents, to consult with employees; and to provide training on OHS matters;
- WorkCover will be likely to come under increasing pressure from unions to bring prosecutions or to request an independent review if no action is taken.
There is still some way to go before the Model Act is passed with Model Regulations due by the end of June. Some issues still need to be ironed out, for example, bullying has not been addressed. Separately in Victoria, existing criminal stalking laws have been extended to apply in cases of serious bullying.
If you wish to discuss these new laws or any other workplace health and safety issues please contact us.