Who does this affect?

All Australian businesses.

What do you need to do?

Review the proposed model OHS laws and consider how they may impact your business.

Authors
Andrew Gray  
Partner

Murray Kellock  
Partner
Andrew Gray  
Partner
T +61 2 9296 2404
Murray Kellock  
Partner
T +61 3 9643 4172

Sydney
Mark Darian-Smith  
Review the proposed model OHS laws and consider how they may impact your business. Andrew Gray  
Review the proposed model OHS laws and consider how they may impact your business.

Melbourne
Stephen Davis  
Review the proposed model OHS laws and consider how they may impact your business. Murray Kellock  
Review the proposed model OHS laws and consider how they may impact your business.

Perth
Sarah Harrison  
Review the proposed model OHS laws and consider how they may impact your business. Robert Lilburne  
Review the proposed model OHS laws and consider how they may impact your business.

Canberra
Ian Johnson  
Review the proposed model OHS laws and consider how they may impact your business.

07 November 2008

Panel releases details of proposed national OHS laws

The panel conducting the review into the harmonisation of Occupational Health and Safety laws has released its first report. This report proposes significant changes to current state OHS laws including substantial increases in penalties.

The purpose of the review

Details of the national review into model OHS laws have been provided in previous alerts. The purpose of the review is to make recommendations on the content of model OHS legislation which can be adopted in each State and Territory. Each State and Territory has previously committed to adopting model OHS laws by 2011.

The report contains the panel’s recommendations in the following priority areas:

  • duties of care, including the identification of duty holders and the scope and limits of their duties, and
  • the nature and structure of offences, including defences.

The panel’s second report, which will provide more detail on the content of the model OHS legislation, will be released in January 2009.

Recommendations

Duties of care

The report recommends that there be a primary (or general) duty of care imposed on any person who conducts a business or undertaking (whether as an employer, self employed person, principal contractor or otherwise) for the health and safety of:

  • workers at the business or undertaking (“worker” will be defined broadly to ensure that all work relationships are covered), and
  • other persons who may be put at risk by the conduct of the business or undertaking.

The model legislation should also impose duties of care on specific classes of persons including:

  • those with management or control of workplace areas
  • designers of plant, substances and structures
  • manufactures of plant, substances and structures
  • builders, erecters and installers of structures
  • suppliers and importers of plant, substances and structures
  • OHS service providers, and
  • officers, workers, and other persons of the workplace.

“OHS service providers” include any person providing OHS advice, services or products that are relied upon by other duty holders to comply with their obligations under the model legislation.

The duties of care imposed by the model legislation should be qualified by what is “reasonably practicable” and this should be defined in the model legislation. This change will be significant for businesses in New South Wales who are currently only entitled to rely on this as a defence. The report recommends that this concept be incorporated as part of the duty itself. The model legislation will not provide any specific defences.

Officers liability

The report recommends that “officers” (not presently defined) of an organisation should have a positive obligation to exercise due diligence to ensure their organisation complies with its duties under the model legislation. The model legislation should make it clear that the officer must be proactive in taking steps to ensure compliance with the legislation. The meaning of “officer” will be defined in stage 2 of the report.

Offences

The report recommends that offences should be criminal, not civil, in nature.

The report recommends 3 categories of offences:

  • Category 1: would relate to the most serious cases of non-compliance involving recklessness or gross negligence or serious harm (fatality of serious injury) to a person, or risk of such harm.
  • Category 2: would deal with serious harm (or the risk of serious harm) without recklessness or negligence.
  • Category 3: would apply to other breaches of the legislation.

The most serious breaches should be indictable offences (permitting trial by jury).

The report recommends significant penalty increases. The maximum penalty for each category of offence recommended by the report are as follows:

  • Category 1: $3 million for a corporation and $600,000 for an individual. Individuals could also be subject to imprisonment for up to 5 years.
  • Category 2: $1.5 million for a corporation and $500,000 for an individual.
  • Category 3: $500,000 for a corporation and $100,00 for an individual.

The penalties for a breach by an “officer” of their positive duty of care under the legislation will also vary depending on the seriousness of the offence. The report recommends the maximum penalty for a Category 1 offence should be $600,000 or imprisonment for up to 5 years.

In addition to monetary and custodial sentences, the report recommends the model legislation should provide for the following sentencing options:

  • adverse publicity orders
  • remedial orders
  • corporate probation
  • community service orders
  • injunctions
  • training orders, and
  • compensation orders.

The report also supports the use of enforceable undertakings as an alternative to prosecution.

Prosecutions

The Report recommends that:

  • The Prosecutor should bear the onus of proving beyond reasonable doubt, that all elements of the offence have been committed.
  • There should be a common time limitation period for initiating prosecutions. This should be the later of 2 years from the occurrence of the offence or 2 years of the offence coming to the regulator’s notice. Prosecutions should also be permitted within 1 year of a coronial inquest or other official inquiry finding that an offence has occurred.
  • There should be no Crown immunity - the Crown in all jurisdictions should be subject to the same duties and sanctions as other duty holders.
  • The model legislation should provide for consistent sentencing guidelines to be issued.
  • The model legislation should facilitate the presentation of victim impact statements (including from relatives of deceased victims) to courts hearing a Category 1 or Category 2 offence.

We will keep you informed of further developments in this area as the panel releases more details of proposed national OHS laws.

In the meantime, please contact any members of our National OHS team if you have any questions or would like to discuss these changes.