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-CromptonStephanie Mayman Barry Sherriff
(Chair)(Panel member)(Panel member)
31 October 2008
Terms of Reference
Background
1The 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.
2OHS 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.
3All 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.
4Despite 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.
5The 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.
6The 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.
7The 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.
8Harmonising OHS laws in this way will cut red tape, boost business efficiency and provide greater certainty and protections for all workplace parties.
9As 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
10The 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).
11In 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.
12The 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.
13The 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
14The 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
15The review will be undertaken by:
a)Mr Robin Stewart-Crompton – Chair
b)Mr Barry Sherriff – Member
c)Ms Stephanie Mayman – Member.
16The 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.
17The following timeframe will apply to the review:
Information gathering, research and consultation with key stakeholders / April – May 2008Publish 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...... i
Background
Scope of the Review
Principles for the Review
Methodology and timeframe
Abbreviations
Preface
Acknowledgments
Summary
Table of Recommendations
PART 1 - THE REGULATORY CONTEXT
Chapter 1: Background to the Review
The Australian OHS legislative framework
Harmonising OHS legislation
The scope of the Review
The Review process
Chapter 2: The constantly changing work environment
The Australian labour market
Changes in the organisation of work
Other changes affecting the regulatory task
Chapter 3: OHS in Australia
Australia’s OHS performance
How regulation affects OHS performance
PART 2 - DUTIES OF CARE
Chapter 4: Principles, Common Features and Structure
Interpretive principles applicable to all duties of care
Common features of all duties of care
The structure and coverage of the duties of care
Chapter 5: ‘Reasonably Practicable’ and Risk management
Should the duties of care be qualified and, if so, how?
How should reasonably practicable be used to qualify the duties of care?
Should reasonably practicable be defined?
How should reasonably practicable be defined?
The issue of ‘control’
Should reasonably practicable explicitly refer to risk management principles and processes?
Chapter 6: The Primary Duty of Care
A primary duty on those who conduct a business or undertaking
Replacing the employer as the primary duty holder
Defining the ‘person who conducts a business or undertaking’ and ‘business’
Duty owed by a ‘person’
Meeting the challenges of changing work relationships
The issue of ‘control’
Meeting concerns about multiple, concurrent duties of care
Defining the persons to whom the duty of care is owed
The duty should not be limited to ‘a workplace’
The importance of the standard of ‘reasonably practicable’
Duty to apply notwithstanding any other duty
The duty to provide a safe and healthy working environment
Explicit elements of the duty of care
Accommodation provided to a worker
Drawing all the elements together in a section
Providing for detail in regulations and guidance material
Chapter 7: Specific classes of duty holders
Duties of Persons with Management or Control of Workplace Areas
Persons undertaking activities in relation to plant, substances and structures
The Provision of Occupational Health and Safety Services
Chapter 8: Duties of ‘Officers’
Discussion
Options
Chapter 9: Duties of care owed by workers and others
Discussion
Duties of Other Persons
PART 3 - OFFENCES RELATING TO BREACHES OF DUTIES OF CARE
Chapter 10: The nature of OHS offences – General features
The criminal or civil nature of offences relating to duties of care
How offences relate to culpability and risk
The nature of criminal liability under OHS offences
Chapter 11: Types of offences
Whether offences are summary or indictable
Proposed categories of offences
Offences relating to work-related deaths and serious injuries
Chapter 12: Sentences for breaches of duties of care
Custodial sentences for duty of care offences
Re-offenders
Other sentencing options
PART 4 - OTHER MATTERS RELEVANT TO DUTY OF CARE OFFENCES
Chapter 13: Burden of proof
Chapter 14: Appeals
Chapter 15: Limits on prosecutions
Whether Crown immunity should apply
Limitation periods
Chapter 16: Guidance on sentencing
Victim Impact Statements
Sentencing guidelines
Chapter 17: Avoiding duplicity & Double Jeopardy
Avoiding duplicity
Double jeopardy
Chapter 18: Related issues
How and where duty of care offences should be located in the model Act
The effects of other laws on offences and penalties
PART 5 - DEFENCES
Chapter 19: Defences relating to duty of care offences
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 20081
Abbreviations
ABSAustralian Bureau of Statistics
ACCIAustralian Chamber of Commerce and Industry
ACTAustralian Capital Territory
ACT ActWork Safety Act 2008 (ACT)
ACT ReviewACT Occupational Health and Safety Act 1989: Scope and Structure Review (2005)
ACTUAustralian Council of Trade Unions
AiGAustralian Industry Group
ASCCAustralian Safety and Compensation Council
BCABusiness Council of Australia
CFMEUConstruction Forestry Mining and Energy Union
COAGCouncil of Australian Governments
CwthCommonwealth
Commonwealth ActOccupational Health and Safety Act 1991 (Cwth)
DEEWRDepartment of Education, Employment and Workplace Relations (Cwth)
DOCEPDepartment of Consumer and Employment Protection (WA)
HIAHousing Industry Association
HSEHealth and Safety Executive (UK)
ICIndustry Commission
ILOInternational Labour Organization
Maxwell ReviewVictorian Occupational Health and Safety Act Review (2004)
McCallum ReviewAdvice in relation to workplace death, occupational health and safety legislation & other matters - Report to WorkCover Authority of NSW(2004)
National OHS StrategyNational Occupational Health and Safety Strategy 2002-2012
NSWNew South Wales
NSW ActOccupational Health and Safety Act 2000 (NSW)
NSW WorkCover ReviewReport on the Review of the Occupational Health and Safety Act 2000 (2006)
NTNorthern Territory
NT ActWorkplace Health and Safety Act 2007 (NT)
NT ReviewReview of the NT Work Health Act and Mining Management Act(2007)
NZNew Zealand
OECDOrganisation for Economic Co-operation and Development
OHSOccupational Health and Safety
PCProductivity Commission (previously the Industry Commission)
QldQueensland
Qld ActWorkplace Health and Safety Act 1995 (Qld)
SASouth Australia
SA ActOccupational Health, Safety and Welfare Act 1986 (SA)
SA ReviewReview of Workers Compensation and Occupational Health Safety and Welfare Systems in South Australia (2002)
Stein InquiryInquiry into the Review of the Occupational Health and Safety Act 2000 (2007)
TasTasmania
Tas ActWorkplace Health and Safety Act 1995 (Tas)
Tas ReviewSafe from Injuries and Risks to Health: Review of Workplace Health and Safety in Tasmania – 2006 Interim Report (2007)
UKUnited Kingdom
UK ActHealth and Safety at Work etc Act 1974 (UK)
VicVictoria
Vic ActOccupational Health and Safety Act 2004 (Vic)
Vic Administrative ReviewA Report on the Occupational Health and Safety Act 2004 – Administrative Review (2007)
WAWestern Australia
WA ActOccupational Safety and Health Act 1984 (WA)
WA ReviewFinal Report: Review of the Occupational Health and Safety Act 1984 (2006)
WRMCWorkplace Relations Ministers’ Council
National Review into Model OHS Laws: First Report to WRMC – October 20081
Preface
OHS regulation affects every workplace in Australia and aims to prevent workplace death, injury and disease. The OHS legislative framework must provide an effective foundation to achieve the ongoing improvements nationally agreed to in Australia’s National OHS Strategy and must be capable of doing so in a rapidly changing world of work.
The legislative framework must also reflect Australia’s commitment to the International Labour Organization’s(ILO) Occupational Safety and Health Convention 1981 (C155).[1] Our recommendations take account of Australia’s obligations under C155 and are consistent with the ILO’s 2003 Global Strategy on Occupational Safety and Health.[2]
Our terms of reference reflect the principles of harmonisation, including enhanced health and safety standards, greater regulatory efficiency and effectiveness, more certainty for duty holders and the elimination of unnecessary regulatory compliance burdens.
The review provides an opportunity to create legislation which clarifies the roles of various parties and accommodates changes in the nature of work, to ultimately improve OHS outcomes in workplaces across Australia.
In conducting this review, we have been guided by the scope and principles set out in the terms of reference. We are required to make our recommendations in two stages, to allow matters critical for harmonisation to be considered by the Workplace Relations Ministers’ Council (WRMC) as a matter of priority.
Our first report focuses on the priority areas specified in clause 12 of our terms of reference:
a)duties of care, including the identification of duty holders and the scope and limits of duties; and
b)the nature and structure of offences, including defences.
Our second report is to be provided to the WRMC by 30January2009. It will cover other matters relevant for a model OHS Act. These are specified in clause 13 of our terms of reference.
In combination, the two reports will provide all our recommendations for the optimal content of a model Act.
It is therefore important to consider the reports together in order to gain a better understanding of the overall balance of our proposals. We aim to assist all interested persons to achieve the best OHS results when the proposed model Act is implemented. We consider that the model Act should build on the successful approach of supporting a continuum of methods for achieving the best OHS results. Overall, these will range from facilitating voluntary co-operative measures to ensure a safe and healthy working environment through to effective means of compelling compliance with the statutory obligations. Many provisions of the model Act will be complementary and inter-related, both as a result of this approach and for technical reasons. For example, the second report is to contain recommendations regarding the scope and coverage, including definitions, of a model Act, which are also essential for the duties of care and offences.