National Safety Summit National Safety Summit

Getting the Dynamics RightGetting the Dynamics Right 27 August 200927 August 2009

Stephanie Mayman C, Stephanie Mayman C, Western Australian Industrial Relations CommissionWestern Australian Industrial Relations Commission

What this session will coverWhat this session will cover

harmonisation to date;harmonisation to date;

why harmonisation; why harmonisation;

objects of the process; objects of the process;

several issues arising from the reports; andseveral issues arising from the reports; and

questionsquestions

Harmonisation AimsHarmonisation Aims

nationally consistent laws (modern & updated)

in developing consistent OSH laws there should be no reduction or compromise in standards for legislative health and safety controls;

consultative approach ensuring input from stakeholders; and

harmonised legislation to be accompanied by standard regulatory approaches

What is harmonisation?What is harmonisation? harmoniousharmonious all one, concordant, cosmic, harmonic, all one, concordant, cosmic, harmonic,

homonymous, homophonic, homophonous, in accord, one, homonymous, homophonic, homophonous, in accord, one, symphonious, true, unanimous, unisonant, unisonous;symphonious, true, unanimous, unisonant, unisonous; congenial congenial acceptable, to someone's taste, acceptable, to someone's taste, unobjectionable, up one's street;unobjectionable, up one's street; fitting fitting appropriate, appropriate, becoming, befitting, condign, congruous, decent, due, becoming, befitting, condign, congruous, decent, due, felicitous, fit, meet perfect, proper, ready-made, right, felicitous, fit, meet perfect, proper, ready-made, right, suitable, suitable,

adverbadverb 7 7 accordaccord chime, concur, consort, correspond, chime, concur, consort, correspond, dovetail, go with, harmonise, key in, live up to, match, dovetail, go with, harmonise, key in, live up to, match, sympathise, tone (in) with;sympathise, tone (in) with; fit fit assort, comport with, assort, comport with, consist with, get along (or on), get on (or along), go with, consist with, get along (or on), get on (or along), go with, interlock, intermesh, match, mate, mesh, satisfy, suit;interlock, intermesh, match, mate, mesh, satisfy, suit;

Bibliography:Bibliography: The Macquarie Encyclopaedic Thesaurus Online, The Macquarie Encyclopaedic Thesaurus Online, August 2009August 2009

Harmonisation to DateHarmonisation to Date

Harmonisation of OHS laws commenced with:Harmonisation of OHS laws commenced with: Productivity Report ‘04 recommendations;Productivity Report ‘04 recommendations; ‘‘uniform national ohs laws in all jurisdictions’;uniform national ohs laws in all jurisdictions’; ‘‘agreement by all jurisdictions to adopt agreement by all jurisdictions to adopt without variationwithout variation

national ohs laws and regulations’;national ohs laws and regulations’; became Directive of Council of Australian Governments became Directive of Council of Australian Governments

(COAG) - 2006;(COAG) - 2006; election promise of current Government; andelection promise of current Government; and 2008 Review Panel established …2008 Review Panel established …

Harmonisation - the panel Harmonisation - the panel processprocess

Panel appointed in April 2008 to conduct review;Panel appointed in April 2008 to conduct review; 242 submissions were made and wide 242 submissions were made and wide

consultation with stakeholders; consultation with stakeholders; final report delivered 30 January 2009;final report delivered 30 January 2009; WRMC released report 13 February 2009; andWRMC released report 13 February 2009; and Drafting of harmonised laws underway …Drafting of harmonised laws underway …

Harmonisation - the drafting Harmonisation - the drafting processprocess

the Panel’s reports may not provide the final the Panel’s reports may not provide the final wording on the model Act but provide a wording on the model Act but provide a series of series of recommendationsrecommendations from which draft laws are from which draft laws are being produced;being produced;

many have asked what further opportunity, if many have asked what further opportunity, if any, will there be for public consultation on the any, will there be for public consultation on the draft Bill;draft Bill;

the answer to that is as directed by Safe Work;the answer to that is as directed by Safe Work; however the panel’s task has concluded; andhowever the panel’s task has concluded; and the drafting is in the hands of Safe Work the drafting is in the hands of Safe Work

Australia who will report to the WRMC …Australia who will report to the WRMC …

Who oversees the process?Who oversees the process?

The new OHS laws will be overseen by:The new OHS laws will be overseen by: Safe Work Australia;Safe Work Australia; input by the stakeholders; input by the stakeholders; Workplace Relations Ministers’ Council;Workplace Relations Ministers’ Council; IGA framework; andIGA framework; and Council of Australian Governments (COAG);Council of Australian Governments (COAG);

The process ahead will ultimately determine the The process ahead will ultimately determine the outcome of harmonised OHS laws in Australia. outcome of harmonised OHS laws in Australia.

Proposed TimelineProposed Timeline 1st September 2009 (draft proposal to WRMC); 1st September 2009 (draft proposal to WRMC);

11th September 2009 - WRMC to consider draft 11th September 2009 - WRMC to consider draft proposal);proposal);

thereafter 6 weeks public comment; andthereafter 6 weeks public comment; and

further consideration by WRMC further consideration by WRMC in December 2009in December 2009

Commencement DateCommencement Date

Nationally harmonised OHS laws and associated Nationally harmonised OHS laws and associated regulations to commence by December 2011regulations to commence by December 2011

The Panel’s Reports The Panel’s Reports 2008/20092008/2009

list of recommendations;list of recommendations; the body of the reportsthe body of the reports to avoid false impressions do not rely on to avoid false impressions do not rely on

specific recommendations or issues in specific recommendations or issues in isolation. isolation.

The recommendations are inter-related The recommendations are inter-related and inter-dependantand inter-dependant

Focus on Several of the Focus on Several of the Report’s Recommendations Report’s Recommendations

reasonably practicable;reasonably practicable; worker;worker; officers;officers; discrimination, victimisation and coercion;discrimination, victimisation and coercion; OHS representatives; OHS representatives; issue/dispute resolution; andissue/dispute resolution; and penaltiespenalties

Reasonably practicableReasonably practicable

‘‘reasonably practicable’ to qualify most duties of reasonably practicable’ to qualify most duties of care (other than for officers, workers and others at care (other than for officers, workers and others at the workplace);the workplace);

‘‘reasonably practicable’ to be defined in the Model reasonably practicable’ to be defined in the Model OHS Act; andOHS Act; and

The definition will, in part:The definition will, in part:refer to what can reasonably be done;refer to what can reasonably be done;refer to ‘weighing up’ relevant matters;refer to ‘weighing up’ relevant matters;clarify reference to hazard, potential harm and risk; andclarify reference to hazard, potential harm and risk; andclarify relevance of cost (misunderstood in the past)clarify relevance of cost (misunderstood in the past)

the definition will not the definition will not specify or definespecify or define the issue of the issue of control control

Workers and othersWorkers and others WorkersWorkers

broad definition of worker – anyone performing broad definition of worker – anyone performing work in a business or undertaking;work in a business or undertaking;

duty to take reasonable care for themselves and duty to take reasonable care for themselves and others; andothers; and

duty to co-operate with the person conducting the duty to co-operate with the person conducting the business or undertaking regarding OHSbusiness or undertaking regarding OHS

Other persons at the workplace (new)Other persons at the workplace (new) similar duty to workerssimilar duty to workers visitors, public and those authorised to enter the visitors, public and those authorised to enter the

workplaceworkplace

Other obligationsOther obligations

Person conducting business or undertaking Person conducting business or undertaking is required to:is required to:

employ or engage qualified person, Workplace employ or engage qualified person, Workplace Health and Safety Officer, to advise, where Health and Safety Officer, to advise, where person conducting business or undertaking person conducting business or undertaking ordinarily has more than 30 employees;ordinarily has more than 30 employees;

monitor workplace and health of workers; andmonitor workplace and health of workers; and notify incidents (responsibility of person notify incidents (responsibility of person

conducting the business or undertaking)conducting the business or undertaking)

CConsultationonsultation

Heath and Safety Representatives:Heath and Safety Representatives:

powers and entitlements include right to direct others powers and entitlements include right to direct others to cease work; to cease work;

right to issue provisional improvement notices (PIN’s); right to issue provisional improvement notices (PIN’s); PIN’s subject to review by inspector; andPIN’s subject to review by inspector; and work groups may include more than one business or work groups may include more than one business or

undertakingundertaking..

Issue/Dispute ResolutionIssue/Dispute Resolution

‘‘issue’ defined as any matter remaining unresolved after issue’ defined as any matter remaining unresolved after consultation at workplace; this triggers the procedureconsultation at workplace; this triggers the procedure

consultation process determined by workplace consultation process determined by workplace participants or, in the absence of such agreement, by participants or, in the absence of such agreement, by default procedure in model Act;default procedure in model Act;

relevant union(s) may be involved in process; and relevant union(s) may be involved in process; and

issues subject to review by relevant court or tribunalissues subject to review by relevant court or tribunal

discrimination, victimisation and coercion prohibited;discrimination, victimisation and coercion prohibited;

includes protection and remedies for all persons who have been includes protection and remedies for all persons who have been exercising a role under the model Act;exercising a role under the model Act;

2 avenues to proceed against person alleged to have carried out 2 avenues to proceed against person alleged to have carried out proscribed conduct - criminal and/or civil; proscribed conduct - criminal and/or civil;

person alleged to be in breach bears the onus of proving that the person alleged to be in breach bears the onus of proving that the reason alleged was not the dominant (criminal courts) or operative reason alleged was not the dominant (criminal courts) or operative (civil courts) reason for the conduct; (civil courts) reason for the conduct;

reasonable precautions defence;reasonable precautions defence;

coercion offence subject to ‘reasonable excuse’; andcoercion offence subject to ‘reasonable excuse’; and

unions to have standing to represent a claimant unions to have standing to represent a claimant

Discrimination, victimisation Discrimination, victimisation and coercionand coercion

UnionsUnions

Authorised representatives of unions to have Authorised representatives of unions to have right of entry:right of entry: immediately for investigating suspected breach;immediately for investigating suspected breach; 24 hours notice for advice or consultation;24 hours notice for advice or consultation; 24 hours notice for request for documents; and24 hours notice for request for documents; and subject to right of entry permit and member eligibility subject to right of entry permit and member eligibility

requirements, protections and accountability requirements, protections and accountability (consistent with (consistent with Fair Work Act 2009Fair Work Act 2009 (Cth) or relevant (Cth) or relevant State legislation)State legislation)

… … unionsunions no power to prosecute under model laws;no power to prosecute under model laws; unions may, as others currently in some unions may, as others currently in some

jurisdictions, seek a review (by DPP) of a jurisdictions, seek a review (by DPP) of a decision by the regulator decision by the regulator not tonot to prosecute or prosecute or alternatively, by an inspector alternatively, by an inspector not tonot to issue a issue a notice; andnotice; and

unions may become involved in issue unions may become involved in issue resolution process, at the request of workerresolution process, at the request of worker

PenaltiesPenalties

Category 1

Category 2

Category 3

Categories based on degree of ‘culpability’ and risk/degree of harm

Corporations: $3,000,000

Officers: $600,000 / 5 years jail

Workers: $300,000 / 5 years jail

Corporations: $1,500,000

Officers: $300,000

Workers: $150,000

Corporations: $500,000

Officers: $100,000

Workers: $50,000

What should you be doing What should you be doing now?now?

Business, regulators, employees, OHS specialists and unions Business, regulators, employees, OHS specialists and unions should prepare for any should prepare for any futurefuture changes, first assessing their changes, first assessing their currentcurrent position in relation to existing OSH laws: position in relation to existing OSH laws:

the key objective in developing a model Act is to the key objective in developing a model Act is to harmoniseharmonise OSH laws in Australia;OSH laws in Australia;

consider and prepare for the changes from the primary consider and prepare for the changes from the primary duty of care and definitions (particularly the breadth of duty of care and definitions (particularly the breadth of ‘worker’); ‘worker’);

‘‘the undertaking’ what does it mean to the workplaces you the undertaking’ what does it mean to the workplaces you attend/work at;attend/work at;

prepare for the changes to consultation, right of entry, OHS prepare for the changes to consultation, right of entry, OHS representatives and committee provisions; andrepresentatives and committee provisions; and

dispute resolution of OHS issues (what will this entail?)dispute resolution of OHS issues (what will this entail?) officersofficers should ensure that corporate governance should ensure that corporate governance

frameworks and processes meet the new duty of care of an frameworks and processes meet the new duty of care of an officer.officer.

Potential difficultiesPotential difficulties

issue of industry coverage and the move that issue of industry coverage and the move that occurred away from OHS laws to industry occurred away from OHS laws to industry specific e.g. transport and minesspecific e.g. transport and mines(final decisions include portfolios in addition to (final decisions include portfolios in addition to coverage by Workplace Relations Ministers’ coverage by Workplace Relations Ministers’ Council);Council);

fear that provisions will be lost if they are fear that provisions will be lost if they are transposed into regulations; andtransposed into regulations; and

the passage of the laws through individual the passage of the laws through individual ParliamentsParliaments..

Harmonisation provides an Harmonisation provides an opportunityopportunity

To lead to an improved system which provides:To lead to an improved system which provides: a change in culture; a change in culture; a change in the law that reflects a rapidly a change in the law that reflects a rapidly

changing work environment; changing work environment; laws that are flexible; andlaws that are flexible; and laws that will last. laws that will last.