Our new workplace safety laws: You’ll be safe in 2012!

1. Our new workplace safety laws:You’ll be safe in 2012! Andrew Ball and Nick Ruskin AHEIA Conference 5 May 2011

2. OHS National Harmonisation • Background - Moving Towards Harmonisation • Primary duty of care “person conducting a business or undertaking” • Due diligence obligations • Consultation obligations • Union right of entry • Penalties • Concluding remarks

3. Background • Commonwealth Constitution – no general OHS power • OHS a matter for the states and territories • British OHS legislation e.g. 1878 Factories Act • Various state, territory and Commonwealth legislation

4. Present Differences between State and Territory OHS Legislation • The nature of the obligations imposed by the legislation upon employers • The nature of the offences • Penalties • Individual liability • Regulations and procedures

5. Moving Towards Harmonisation • In July 2008 the Council of Australian Governments signed an Intergovernmental Agreement for Regulatory and Operations Reform in OHS (IGA) • The IGA provided that State, Territory and Commonwealth Governments will cooperate to develop uniform model OHS legislation by 2012 • Safe Work Australia was established in July 2009 • Public discussion and feedback has occurred • Model Acts scheduled to commence 1 January 2012

6. Key principles that apply to the duties • A safety duty is non-delegable • A person can have more than one duty if they come within more than one class of duty holder • More than one person can concurrently have the same safety duty - which means the duty holders must coordinate, consult and cooperate activities amongst themselves

7. Primary Duty of Care – Person Conducting a Business or Undertaking • ‘Person conducting a business or undertaking’ (PCBU) • Not only the employer that must do things • A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged by the person (and workers whose activities are influenced or directed by the person), while the workers are at work in the business or undertaking

8. Primary Duty of Care – Person Conducting a Business or Undertaking • No longer only employees that have protections, it is ‘workers’ • Worker includes: • An employee • A contractor or subcontractor • An employee of a contractor or subcontractor • An employee of a labour hire company who has been assigned to work in the person's business or undertaking • A volunteer • A student gaining work experience

9. Primary Duty of Care – Person Conducting a Business or Undertaking So far as is reasonably practicable the PCBU must ensure: • The provision and maintenance of a work environment without risks to health and safety • The provision and maintenance of safe plant and structures • The provision and maintenance of safe systems of work • The safe use, handling and storage of plant, structures and substances

10. Primary Duty of Care – Person Conducting a Business or Undertaking What things a PCBU must ensure, so far as is reasonably practicable (continued): • The provision of adequate facilities including ensuring access to those facilities • The provision of any information, training, instruction or supervision • That the health of workers and the conditions at the workplace are monitored for the purposes of preventing illness or injury

11. Further Duties of a PCBU PCBU who are • persons with management or control of a workplace • persons with management or control of fixtures, fittings or plant at a workplace • persons who design plant substances or structures • persons who import plant, substances or structures • persons who supply plant, substances or structures • persons installing, constructing or commissions plant or structures

12. ‘Reasonably Practicable’ In reviewing what is reasonably practicable, regard must be had for all relevant matters, including: • The likelihood of the hazard or the risk concerned occurring • The degree of harm that might result from the hazard or the risk • What the person concerned knows, or ought reasonably, to know, about the hazard or the risk, and ways of eliminating or minimising that hazard or the risk • The availability and suitability of ways to eliminate or minimise the hazard or the risk • The cost of eliminating or minimising the hazard or the risk

13. ‘Reasonably Practicable’ Objective test • A duty holder must meet the standard of behaviour expected of a reasonable person in the duty holder’s position who is required to comply with the same duty and is: • Committed to providing the highest level of protection for people against risks to their health and safety • Proactive in taking measures to protect the health and safety of people • No single matter will determine what is reasonably practicable at the time • Bar to be set high and that some of the elements, such as costs, are likely to be difficult to rely upon

14. ‘Reasonably Practicable’ Burden of Proof • It will be the prosecutor who will have to prove that the defendant has failed to meet their duty of care, and then prove that failure beyond reasonable doubt • Consistent with criminal prosecutions principle • No private prosecutions

15. Due Diligence Obligations • A positive obligation to exercise due diligence is placed upon officers, workers and other persons • Where a body (as distinct from an individual) has a duty, an officer of that body must exercise due diligence to ensure that the body complies with that duty • This presents a new compliance obligation for 'officers'

16. Due Diligence Obligations An 'officer' of a body corporate is defined by reference to section 9 of the Corporations Act 2001 (Cth). This means an officer will include: • a director • a person who makes or participates in making decisions that affect the whole or substantial part of the business or undertaking • a person who has the capacity to affect significantly the body's financial standing • receivers and managers • liquidators

17. Due Diligence Obligations Due diligence includes taking reasonable steps in relation to: • acquiring and keeping up to date knowledge of work health and safety matters • gaining an understanding of the nature of the operations and the hazards and risks associated with those operations • ensuring the availability and use of appropriate resources and processes to enable hazards are identified and risks eliminated or minimised

18. Due Diligence Obligations Due diligence includes taking reasonable steps in relation to (continued): • ensuring appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding to these in a timely way exist • ensuring the implementation of processes for complying with the body’s duties and obligations • verifying the provision and use of the resources and processes referred to above

19. Due Diligence Obligations • In practice, a PCBU must have in place: • best practice OHS safety management systems • appropriate reporting and review of OHS issues at the most senior level • Officers of the PBCU will also have to ensure that they are aware of: • The OHS obligations • the particular safety hazards and risk controls in place to manage these • The Model Act aims to promote a positive culture and accountability – through the engagement of all in work health and safety

20. Due Diligence Obligations • It will be necessary: • To ensure officers have the necessary information, the PCBU will need to ensure the existence of a governance structure and reporting process that ensures the right information is provided to officers at the right time • The timing and content of reports and auditing from committees and particular positions within the business or undertaking will need to be reviewed

21. Consultation Two key consultation areas Duty Holders • Duty holders with overlapping work, health and safety duties must, so far as is reasonably practicable, consult, cooperate and coordinate activities with each other Workers • PCBU must, so far as is reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or likely to be, directly affected by a matter relating to health or safety at work

22. Consultation Consultation – workers (continued) • This obligation extends beyond employees to cover all workers such as contractors • Consultation must be in accordance with any procedures agreed between the PCBU and the workers • Consultation should be proportionate to the circumstances

23. Consultation Consultation requires a PCBU to: • share relevant information with workers • give workers a reasonable opportunity to express their views, to raise OHS issues in relation to a matter and to contribute to the resolution of the matter • take the views of workers into account • advise the persons consulted of the outcome of the consultation in a timely manner • involve health and safety representatives (HSR)

24. Consultation Consultation is required when: • identifying hazards or assessing risks • making decisions about ways to eliminate or minimise those hazards or risks • making decisions about the adequacy of facilities for the welfare of workers • making decisions about the procedures for resolving health and safety issues including consultations

25. Consultation • HSR play an important role • HSR functions include: • representing the workers • monitoring measures taken to comply with the Model Act • investigating complaints about work health and safety from the work group • enquiring about anything that appears to be a risk to the health and safety of the workers in the work group

26. Consultation HSR’s include: • Inspecting the workplace and/or accompanying an Inspector during an inspection of the workplace • Being present at interviews concerning work health and safety between the worker and the Inspector or the PCBU • Requesting a health and safety committee be established and receive information concerning the health and safety of workers

27. Consultation A HSR is owed a number of obligations by the PCBU. A PCBU must: • Consult with the HSR about OHS matters and provide relevant information and training to a HSR • Confer with the HSR • Provide any resources, facilities and assistance to a HSR to enable the HSR to exercise their powers or functions under the Model Act • Allow the HSR access to, and to accompany an Inspector in an inspection of, the workplace • Allow the HSR to spend such time as is reasonably necessary to exercise their powers or functions

28. Consultation The ability to establish a Health and Safety Committee (HSC) is provided for in the Model Act: • A HSC will be established if requested by a work group or five or more workers • The primary goal is to facilitate cooperation of, and assisting in developing standards for, the operations of the work group concerned • At least half the members of a HSC must not be nominated by the PCBU • Similarly to a HSR, if an agreement cannot be reached, an Inspector may become involved to determine a HSC constitution issue

29. Consultation The functions of a HSC are: • to facilitate the cooperation between the PCBU and workers to develop and carry out measures designed to ensure health and safety at work • to assist in developing the standards, rules and procedures to be followed or complied with in the workplace • such other functions such other functions prescribed by regulation

30. Consultation Issue Resolution • Reasonable efforts must be made to resolve OHS issues at a workplace level • Resolutions should occur in accordance with an agreed workplace procedure or, if there is no agreed procedure, in accordance with the procedure prescribed in the regulations • The regulator may be asked by a party to arrange an Inspector to attend the workplace of a business or undertaking if any issue remains unresolved after reasonable efforts to achieve a resolution have been unsuccessful

31. Right to Cease Unsafe Work The Right to Cease Work: • A worker may cease to work if there are reasonable grounds to believe that continued work would expose that worker to a serious risk to their safety • This risk must emanate from an imminent or immediate exposure to a hazard • A HSR can similarly direct a worker to cease work, but they must first consult with the PCBU unless the risk is so serious as to not warrant consultation • A worker who has ceased work must remain available to carry out suitable alternative work

32. Union Right of Entry • Union right of entry provisions of the Model Act for OHS are consistent with the Fair Work Act 2009 (Cth) (FW Act) • Entry provided for in two main areas: • Investigation of a suspected breach of the Model Act • Entry to consult and advise workers

33. Union Right of Entry Suspected Contravention Investigation of a suspected contravention of the Model Act: • An OHS entry permit holder may enter to investigate a suspected contravention affecting relevant workers • The OHS entry permit holder must reasonably suspect a contravention has occurred or is occurring before they are permitted to enter the workplace

34. Union Right of Entry Powers The permit holder has powers to: • inspect work systems, plant and substances • consult with relevant workers and the person conducting the business or undertaking • inspect and make copies of records and documents relevant to the suspected contravention kept at the workplace, or accessible from a computer at the workplace • may warn any person of a serious risk they reasonably believe the person is exposed to

35. Union Right of Entry Notification • If a permit holder enters a workplace, they must notify both the relevant PCBU and the person with management control of the workplace • Exceptions exist in circumstances where notification would defeat the purpose of entry or unreasonably delay the permit holder in urgent circumstances • Permit holders may also enter the premises with 24 hours notice to inspect or make copies of records and documents that relate to a suspected breach

36. Union Right of Entry Notification (continued) • The permit holder may also enter in circumstances where 24 hours notice is given to provide advice and consult on OHS matters with relevant workers who wish to participate in discussions • It is likely that similar issues faced by Fair Work Australia regarding union right of entry may provide some degree of precedent to right of entry under the Model Act

37. Obligations on Permit Holders The permit holder has obligation: • not to cause undue disruption to work • intentionally and unreasonably hinder or obstruct a person • act in an improper manner The permit holder must: • comply with OHS requirements at the workplace • follow reasonable requests to hold discussions in a particular room or area and/or take a particular path to that place • must have their permit and identification available upon request

38. Obligations on Permit Holders • The Model Act makes it an offence for a person to refuse or delay the entry of a permit holder, or to hinder or obstruct a permit holder exercising right of entry • Disputes concerning right of entry may be dealt with by the relevant authorising authority • The Model Act also deals with processes for the application, issue, duration, expiry, revocation and suspension of OHS entry permits

39. Penalties Categories • A Category 1 offence is committed if a person fails to comply with their duty, the failure causes death or serious illness or injury (or a high risk of this), and the person is reckless about the consequences of their failure • A Category 2 offence is committed in the same way as a Category 1 offence, except there is no element of recklessness • A Category 3 offence is one that is committed in all other circumstances of a failure to comply with safety duties

40. Penalties

41. Penalties Orders Possible Court Orders: • community service orders, which require activities that benefit the community, with a particular focus on improving OHS • training orders, which require action to develop necessary skills to manage OHS effectively • injunctions, to ensure compliance with the duties • the Model Act would also allow the court to make a wide range of other orders, in addition to a penalty, if the prosecution is successful

42. Penalties Enforceable Undertaking • Under the Model Act, a regulator is able to accept an enforceable undertaking in lieu of prosecuting a defendant

43. Concluding Remarks • The objective of OHS harmonisation is to be commended • Need to have uniformity of application • Harmonisation will not be achieved unless: • the court systems dealing with OHS matters in each jurisdiction are similar • the prosecution in each jurisdiction are bound by the similar prosecution policy and that policy is applied in a similar way

44. Questions?