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

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

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: OHS Strategic Issues Group developing the models

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

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   

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

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   

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

Duties of Care – Model Act

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.

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)

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’

Officers – Model Act Who is an officer? Director of the organisation who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking (including equivalent person in a Govt department or agency) Who has the capacity to significantly affect the organisation’s finances Receiver or manager of any property of the organisation Liquidator Excludes Ministers 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

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

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

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

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

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

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. Entering a workplace to inquire into a suspected contravention of the model WHS Act: A WHS entry permit holder is not required to give prior notice when entering a workplace to inquire into a reasonably suspected contravention of the model Act. This is similar to the requirement found in the Fair Work Act 2009 (FW Act) in relation to the exercise of rights under State and Territory OHS legislation. Entry to inspect or take copies of employees records or documents not held by the PCBU: A WHS entry permit holder is required to give 24 hours notice to the PCBU and the person from whom documents or records are sought if they are entering a workplace to inspect or take copies of: - employee records that are directly relevant to a suspected contravention of the model Act, - records or documents that are directly relevant to a suspected contravention of the model Act that are not held by the PCBU. - Again, this is similar to requirements found in the FW Act. Entry to consult with and advise workers A WHS entry permit holder is required to give at least 24 hours notice to the PCBU before entering a workplace to consult on WHS matters and provide advice on those matters to relevant workers. While at a workplace to consult with and advise workers a WHS entry permit holder may warn any person of a risk to their health and safety.

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. Requirement to have a WHS entry permit A WHS entry permit holder must, at all times when at a workplace exercising a right of entry, have his or her WHS entry permit and photographic identification available for inspection. Additionally, a WHS entry permit holder must not enter a workplace exercising a right of entry unless he or she also hold a Fair Work Act entry permit or the relevant state or territory industrial law entry permit. Whether a Fair Work entry permit or state or territory industrial law entry permit is required will depend on the workplace which the WHS entry permit holder is entering. For instance: - the FW Act requires that a union official must hold a Fair Work Act entry permit when entering all workplaces of constitutional corporations, all workplaces in Territories and all workplaces (with minimal exceptions) in those States that have referred their industrial relations power to the Commonwealth; - if a WHS entry permit holder was wishing to enter a State government office in many jurisdictions, they would also be required to hold a current State industrial law entry permit. Eligibility for a WHS entry permit 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 FW Act entry permit or the relevant state or territory industrial law entry permit.

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

and risk/degree of harm 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 Workers: $50k Corporations: $500k Officers: $100k $50k Category 3 Category 3

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

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 To support the model WHS Act, Safe Work Australia is currently developing policy proposals and drafting instructions for the model Regulations and model priority Codes of Practice. This work involves the benchmarking and analysis of existing regulations and practical guidance material in each jurisdiction, as well as relevant national standards.

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. There will be model Codes of Practice developed for these subject matters.

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 Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 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

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 Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 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

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)

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