National Review Into Model Occupational Health and Safety Laws

NATIONAL REVIEW INTO MODEL OCCUPATIONAL HEALTH AND SAFETY LAWS

FIRST REPORT

TO THE WORKPLACE RELATIONS MINISTERS’ COUNCIL

OCTOBER 2008

© Commonwealth of Australia 2008

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National Review into Model OHS Laws: First Report to WRMC – October 2008

The Honourable Julia Gillard MP

Minister for Employment and Workplace Relations

Parliament House

CANBERRA ACT 2600

Dear Minister

In accordance with clause 12 of the terms of reference for the National Review into Model Occupational Health and Safety (OHS) Laws, we submit to you, in your capacity as the Chair of the Workplace Relations Ministers’ Council, our first report containing findings and recommendations on the optimal content of a model OHS Act in the following priority areas:

·  duties of care, including the identification of duty holders and the scope and limits of duties; and

·  the nature and structure of offences, including defences.

Our second report on all other matters relating to the optimal content of a model OHS Act will be submitted to the Workplace Relations Ministers’ Council by 30January2009, as required under clause 13 of the terms of reference.

Yours sincerely

Robin Stewart-Crompton Stephanie Mayman Barry Sherriff

(Chair) (Panel member) (Panel member)

31 October 2008

Terms of Reference

Background

1  The health and safety of Australian workers is a key concern of Australian governments at all levels. All workers have the right to a safe and healthy workplace and employers have the right to expect that workers and visitors to their workplaces will co-operate with occupational health and safety (OHS) rules.

2  OHS regulation affects every workplace in Australia. All States, Territories and the Commonwealth have OHS laws that aim to prevent workplace death, injury and disease. Industry specific laws covering workplace safety and laws regulating particular hazards, for example the transport and storage of dangerous goods, also exist in certain jurisdictions.

3  All Australian governments have taken a broadly similar approach to regulating for safer workplaces. The approach involves a principal OHS Act codifying common law duties of care, supported by detailed regulations and codes of practice, and a system of education, inspection, advice, compliance activities and, where appropriate, prosecution.

4  Despite this commonality, there remain differences between jurisdictions as to the form, detail and substantive matters in OHS legislation, particularly in regard to duty holders and duties, defence mechanisms and compliance regimes, including penalties.

5  The importance of harmonised OHS laws has been recognised by the Council of Australian Governments, the Productivity Commission and the States and Territories in their work in this area to date.

6  The Australian Government has committed to work co-operatively with State and Territory governments to achieve the important reform of harmonised OHS legislation within five years. Following the recent meeting of the Workplace Relations Ministers’ Council, all States and Territories have agreed to work together with the Commonwealth to develop and implement model OHS legislation as the most effective way to achieve harmonisation.

7  The model legislation will consist of a model principal OHS Act, supported by model regulations and model codes of practice that can be readily adopted in each jurisdiction.

8  Harmonising OHS laws in this way will cut red tape, boost business efficiency and provide greater certainty and protections for all workplace parties.

9  As the first step in this process the Australian Government has appointed an advisory panel to conduct a national review of current OHS legislation across all jurisdictions, and recommend to the Workplace Relations Ministers’ Council the optimal structure and content of a model OHS Act.

Scope of the Review

10  The panel is asked to review OHS legislation in each State, Territory and Commonwealth jurisdiction for the purpose of making recommendations on the optimal structure and content of a model OHS Act that is capable of being adopted in all jurisdictions. The panel is asked to make its recommendations in two stages, to allow matters critical for harmonisation to be considered by the Workplace Relations Ministers’ Council as a matter of priority (refer paragraphs 12 and 13).

11  In undertaking the review, the panel will:

a)  examine the principal OHS legislation of each jurisdiction to identify areas of best practice, common practice and inconsistency;

b)  take into account relevant work already undertaken in this area by the Australian Safety and Compensation Council and others (including international developments), and consider recommendations from recent reviews commissioned by Australian governments relating to OHS laws;

c)  take into account the changing nature of work and employment arrangements;

d)  consult with business, governments, unions and other interested parties, and invite submissions from the public and other stakeholders on matters relating to the review; and

e)  make recommendations on the optimal structure and content of a model OHS Act that promotes safe workplaces, increases certainty for duty holders, reduces compliance costs for business and provides greater clarity for regulators without compromising safety outcomes.

12  The panel should examine and make recommendations on the optimal content of a model OHS Act in the following areas as a matter of priority, and report to the Workplace Relations Ministers’ Council by 31 October 2008:

a)  duties of care, including the identification of duty holders and the scope and limits of duties;

b)  the nature and structure of offences, including defences.

13  The review panel should also examine and make recommendations on the optimal content of a model OHS Act in the following areas, and report to the Workplace Relations Ministers’ Council by 30 January 2009:

a)  scope and coverage, including definitions;

b)  workplace-based consultation, participation and representation provisions, including the appointment, powers and functions of health and safety representatives and/or committees;

c)  enforcement and compliance, including the role and powers of OHS inspectors, and the application of enforcement tools including codes of practice;

d)  regulation making powers and administrative processes, including mechanisms for improving cross-jurisdictional co-operation and dispute resolution;

e)  permits and licensing arrangements for those engaged in high risk work and the use of certain plant and hazardous substances;

f)  the role of OHS regulatory agencies in providing education, advice and assistance to duty holders;

g)  other matters the review panel identifies as being important to health and safety that should be addressed in a model OHS Act.

Principles for the Review

14  The review will be guided by the following principles:

a)  an inclusive approach to the harmonisation process, where the concerns and suggestions of all jurisdictions and interested stakeholders are sought and properly considered;

b)  that the development of model OHS legislation be accompanied by an increase in consistency of monitoring and enforcement of OHS standards across jurisdictions;

c)  consideration of the resource implications for all levels of government in administering harmonised laws;

d)  the observance of the directive of the Council of Australian Governments that in developing harmonised OHS legislation there be no reduction or compromise in standards for legitimate safety concerns.

Methodology and timeframe

15  The review will be undertaken by:

a)  Mr Robin Stewart-Crompton – Chair

b)  Mr Barry Sherriff – Member

c)  Ms Stephanie Mayman – Member.

16  The advisory panel will be supported by a secretariat resourced by the Commonwealth Department of Education, Employment and Workplace Relations. State and Territory governments may also provide practical support and assistance to the advisory panel.

17  The following timeframe will apply to the review:

Information gathering, research and consultation with key stakeholders / April – May 2008
Publish issues paper and invite submissions / May 2008
Provide a progress report to Workplace Relations Ministers’ Council meeting / May 2008 (expected)
Provide report and recommendations to Workplace Relations Ministers’ Council on priority areas outlined in paragraph 12 (duties of care and the nature and structure of offences) / 31 October 2008
Provide report and recommendations to Workplace Relations Ministers’ Council on remaining matters / 30 January 2009

Contents

Terms of Reference ii

Background i

Scope of the Review i

Principles for the Review i

Methodology and timeframe i

Abbreviations i

Preface i

Acknowledgments i

Summary i

Table of Recommendations i

PART 1 - THE REGULATORY CONTEXT

Chapter 1: Background to the Review 1

The Australian OHS legislative framework 1

Harmonising OHS legislation 1

The scope of the Review 1

The Review process 1

Chapter 2: The constantly changing work environment 1

The Australian labour market 1

Changes in the organisation of work 1

Other changes affecting the regulatory task 1

Chapter 3: OHS in Australia 1

Australia’s OHS performance 1

How regulation affects OHS performance 1

PART 2 - DUTIES OF CARE

Chapter 4: Principles, Common Features and Structure 1

Interpretive principles applicable to all duties of care 1

Common features of all duties of care 1

The structure and coverage of the duties of care 1

Chapter 5: ‘Reasonably Practicable’ and Risk management 1

Should the duties of care be qualified and, if so, how? 1

How should reasonably practicable be used to qualify the duties of care? 1

Should reasonably practicable be defined? 1

How should reasonably practicable be defined? 1

The issue of ‘control’ 1

Should reasonably practicable explicitly refer to risk management principles and processes? 1

Chapter 6: The Primary Duty of Care 1

A primary duty on those who conduct a business or undertaking 1

Replacing the employer as the primary duty holder 1

Defining the ‘person who conducts a business or undertaking’ and ‘business’ 1

Duty owed by a ‘person’ 1

Meeting the challenges of changing work relationships 1

The issue of ‘control’ 1

Meeting concerns about multiple, concurrent duties of care 1

Defining the persons to whom the duty of care is owed 1

The duty should not be limited to ‘a workplace’ 1

The importance of the standard of ‘reasonably practicable’ 1

Duty to apply notwithstanding any other duty 1

The duty to provide a safe and healthy working environment 1

Explicit elements of the duty of care 1

Accommodation provided to a worker 1

Drawing all the elements together in a section 1

Providing for detail in regulations and guidance material 1

Chapter 7: Specific classes of duty holders 1

Duties of Persons with Management or Control of Workplace Areas 1

Persons undertaking activities in relation to plant, substances and structures 1

The Provision of Occupational Health and Safety Services 1

Chapter 8: Duties of ‘Officers’ 1

Discussion 1

Options 1

Chapter 9: Duties of care owed by workers and others 1

Discussion 1

Duties of Other Persons 1

PART 3 - OFFENCES RELATING TO BREACHES OF DUTIES OF CARE

Chapter 10: The nature of OHS offences – General features 1

The criminal or civil nature of offences relating to duties of care 1

How offences relate to culpability and risk 1

The nature of criminal liability under OHS offences 1

Chapter 11: Types of offences 1

Whether offences are summary or indictable 1

Proposed categories of offences 1

Offences relating to work-related deaths and serious injuries 1

Chapter 12: Sentences for breaches of duties of care 1

Custodial sentences for duty of care offences 1

Re-offenders 1

Other sentencing options 1

PART 4 - OTHER MATTERS RELEVANT TO DUTY OF CARE OFFENCES

Chapter 13: Burden of proof 1

Chapter 14: Appeals 1

Chapter 15: Limits on prosecutions 1

Whether Crown immunity should apply 1

Limitation periods 1

Chapter 16: Guidance on sentencing 1

Victim Impact Statements 1

Sentencing guidelines 1

Chapter 17: Avoiding duplicity & Double Jeopardy 1

Avoiding duplicity 1

Double jeopardy 1

Chapter 18: Related issues 1

How and where duty of care offences should be located in the model Act 1

The effects of other laws on offences and penalties 1

PART 5 - DEFENCES

Chapter 19: Defences relating to duty of care offences 1

APPENDICES

Appendix A – Bibliography

Appendix B – Submissions

List of tables

TABLE 1: Scope of the Review 4

TABLE 2: Numbers of Small Businesses 1997 – 2007 8

TABLE 3: Duties of Care under most OHS legislation 22

TABLE 4: Current jurisdictional arrangements for the Primary Duty of Care 39

TABLE 5: Duties for activities relating to plant, substances and structures 68

TABLE 6: Whether offences are summary or indictable 97

TABLE 7: Offence provisions relating to work-related fatalities 100

TABLE 8: Fines where there is no specified aggravating factor 104

TABLE 9: Fines where there is an aggravating factor 104

TABLE 10: Custodial sentences 105

TABLE 11: Proposed fines for breaches of primary duty of care or specific duty of care 108

TABLE 12: Proposed fines for breaches of officer’s duty of care 108

TABLE 13: Proposed fines for breaches of duty of care of worker or other person at a workplace 109

TABLE 14: Overview of fines for re-offenders 111

TABLE 15: Overview of sentencing options 112

TABLE 16: Courts with jurisdiction over breaches of duties of care 120

TABLE 17: Periods within which actions may be brought 124

National Review into Model OHS Laws: First Report to WRMC – October 2008 xiv

Abbreviations

ABS Australian Bureau of Statistics

ACCI Australian Chamber of Commerce and Industry

ACT Australian Capital Territory

ACT Act Work Safety Act 2008 (ACT)

ACT Review ACT Occupational Health and Safety Act 1989: Scope and Structure Review (2005)

ACTU Australian Council of Trade Unions

AiG Australian Industry Group

ASCC Australian Safety and Compensation Council

BCA Business Council of Australia

CFMEU Construction Forestry Mining and Energy Union