National Model OHS Laws and their impact in South Australia

1. National Model OHS Laws and their impact in South Australia Tony MacHarper SafeWork SA Department of the Premier and Cabinet

2. The Aim: One Work Health and Safety Act for Australia • one model law (Act) and model regulations and codes of practice • Compliance and enforcement arrangements are consistent across jurisdictions • For business - a reduced regulatory burden • For workers – fairness - the same conditions for a healthy and safe workplace exist and are consistently administered

3. Events Leading to Australia’s New Model WHS Act • Intergovernmental Agreement 2008 on WHS reform, committing all States, Territories and the Commonwealth to implementing model WHS laws. • National Review into Model WHS Laws (completed in January 2009); and • the establishment of Safe Work Australia, which has responsibility to develop the model WHS legislation: OHSStrategic Issues Group developing the models

4. Where are we up to? • On 11 December 2009, Ministers endorsed the draft of the Model WHS Act • Safe Work Australia : Governments & employer & union representatives developed national model regulations & priority codes of practice • The full set of model regulations & priority codes of practice released for public comment from 7 December 2010 to 4 April 2011 • PSWR to advise CEO’s on the comment process • Jurisdictions need to adopt the Model Act, regs and codes by January 2012

5. Structure of the Model WHS Act The new Act will be called the Work Health & Safety Act • Scope, objects, definitions • Duties of care and other obligations • Consultation, participation and representations • Protection from discrimination

6. Structure of Model Act cont • Workplace right of entry (for union officials) • Functions and powers of the Regulator and Inspectors • Legal proceedings; and • Other administrative matters

7. What does this mean for SA? The new Act in SA will be called the South Australian Work Health & Safety Act • Overall it is consistent with the SA OHSW Act but will include dangerous substances • Functions and powers of the Regulator and Inspectors consistent with current SA Act, but improvements provide greater accountability and transparency • Workplace right of entry (for union officials) consistent with Fair Work Act as far as possible • Legal proceedings and local tripartite consultation arrangements will be SA-specific

8. Scope and application • Overall it is consistent with the SA OHSW Act • Act will bind the Crown • It applies to all industries; and • It requires protection of the health and safety of any person - including the public - from exposure to hazards and risks that arise from work. • Persons may have more than one duty and more than one person can have the same duty

9. Duties of Care – Model Act

10. Persons conducting a business or undertaking • The primary duty holder under the Model is the PCBU • In terms of outcome, the Model is consistent with SA OHSW Act in relation to duties • PCBU must ensure, so far as is reasonably practicable, the health & safety of workers while engaged at work in the business or undertaking, and that other persons are not put at risk from the conduct of the business or undertaking.

11. Who is a Person conducting a business or undertaking • ‘Person’ includes a body corporate, unincorporated body or association and a partnership • Applies to activities whether conducted alone or together with others, for profit or not for profit, with or without engaging workers • Intended to capture the broad range of work relationships and business structures • Does not extend to a person’s private or domestic activities or to ‘volunteer associations’ (as defined)

12. What does this mean for SA? • The primary duty of care for the PCBU is equivalent to s19 of OHS&W Act • PCBU concept provides greater certainty about workplace duties • Removes ambiguity re responsibility eg principal contractor/contractors • Clarifies duties • Confirms sharing of information • the PCBU concept ‘casts a wider net’

13. Officers – Model Act • Officers to exercise ‘due diligence’. • Volunteers, local government councillors immune from prose- cution for offences committed under the model Act in their capacity as an ‘officer’ • Definition of ‘officer’ based on Corporations Act 2001

14. What does this mean for SA? • Officer duties are generally consistent (with SA OHSW Act and FWA) • Responsible Officer provision of SA legislation is not in the Act • No significant change for SA workplaces – obligations and duties are consistent

15. Officers to exercise due diligence • Acquire safety knowledge (via training & reporting of safety performance) • Understand the activities undertaken by the Agency and the related risks • Provide appropriate resources & processes essential to achieve compliance with any duty or obligation of the PCBU • Consider incidents, hazards, risks – ensure information is there to monitor these/solve problems • Have objective & verifiable records of the provision & use of the above elements

16. What does this mean for the Public Sector? • CEO (agency or public authority) is the PCBU • Members of a Senior Executive Group e.g. Deputy CEO’s/Executive Directors likely to be regarded as Officers - have decision making capacity/control over the Dept or Agency. • Heads of Business Units (Executive) remain accountable for health & safety of the people in that Unit

17. Consultation – OHS Act • Duty to consult with workers - Qualified by ‘reasonably practicable’ - defines consultation as well as how and when it should be undertaken • Health and Safety Representatives (HSRs) - Must be established on request from a worker - Can direct unsafe work to cease and issue provisional improvement notices, but only if trained • Health and Safety Committees - Must be established within 2 months where requested by HSR, or 5 or more workers

18. What does this mean for SA? • Consultation obligation continues • Power to cease work and issue notices is consistent but applies only after training (must occur within 3 months) • Training obligations - slight change • Overall minimal impact for SA workplaces –esp. public sector

19. WHS Entry Permits(Union right of entry) Entry to inquire into a suspected contravention: • WHS entry permit holder not required to give prior notice of entry to inquire into a suspected breach of the model WHS Act. • May inspect the workplace and consult with workers and the relevant PCBU. • After entry permit holder must give the PCBU notice of entry & details of the suspected contravention.

20. Work Health & Safety Entry permits • The authorising authority may issue a WHS entry permit to an official of a union, on application, if that official: • has satisfactorily completed prescribed WHS training, and • holds, or will hold, a Fair Work Act 2009 entry permit or the relevant state or territory industrial law entry permit.

21. Enforceable Undertakings • An enforceable undertaking is an agreement between an alleged offender and the regulator to implement specific actions • It is considered to be an alternative to prosecution • A breach of an undertaking can be referred to a court to have the undertaking enforced

22. Penalties – OHS Act Categories based on degree of ‘culpability’ and risk/degree of harm Corporations: $3m Officers: $600k / 5 years jail Worker: $300k / 5 years jail Corporations: $3m Officers: $600k / 5 years jail Workers: $300k / 5 years jail Category 1 Category 1 Corporations: $1.5m Officers: $300k Workers: $150k Corporations: $1.5m Officers: $300k Workers: $150k Category 2 Category 2 Corporations: $500k Officers: $100k $50k Corporations: $500k Officers: $100k Workers: $50k Category 3 Category 3

23. What does this mean for SA? • Potential significant increase in level of penalties for breaches • No anticipated increase in prosecutions; experience suggests an increase in defended cases

24. Model WHS Regulations • authorisations- registration and licences, for example, asbestos removal and high risk work • workplaces - facilities, first aid, personal protective equipment, emergency plans, considering remote and isolated work • chemicals - inorganic lead, asbestos, labelling, safety data sheets and • major hazard facilities • construction work • other hazards - plant, manual tasks, noise, falls, confined spaces, electricity

25. Model Codes of Practice Examples of Priority Codes • managing work health and safety risks • consultation • work environment and facilities • asbestos • hazardous chemicals - labelling/safety data sheets • plant, manual tasks, noise, working at heights, construction hazards. Additional Codes of Practice (development underway): • Fatigue, first aid, bullying, occupational violence • hazardous work codes - diving, abrasive blasting, logging, welding and spray painting.

26. Apr Feb Oct Dec Mar Jan May Nov Jul Aug Sep Oct Jun Nov Dec National Timeline 14-15 October: Strategic Issues Group (SIG) meeting – focus on Model Codes of Practice 2 December: Safe Work Australia Council to endorse regulatory package 7 Dec 2010 to 4 April 2011: Public Comment on draft regulatory package End of 2011: Model WHS Laws package finalised…ready for implementation 2010 2011 June 2011: Regulatory package goes to Workplace Ministers for approval 25 November: SIG meeting to finalise regulatory package 3-5 November: SIG meeting to progress Draft Regulations and COPs 26

27. May Oct Feb Dec Nov Dec Jan Oct Mar Apr Nov Jun Jul Aug Sep SA Timeline 7 Dec 2010 to 4 April 2011: Public Comment on draft regulatory package From July 2011: Process starts for SA to adopt WHS Regulations and Priority Codes of Practice 2010 2011 Feb-March 2011: SA WHS Bill tabled in Parliament - Parliamentary process commences to enact SA WHS Act for 2012 Late 2010 to early 2011: Public Comment on Jurisdictional Notes for SA WHS Bill 27

28. More Information ? • www.safeworkaustralia.gov.au • Model Work Health and Safety Act • Explanatory memorandum • Draft Work Health & Safety Regulations • Draft Priority Codes of Practice • 12 Factsheets (covering key issues)

29. Thank You