The Workplace Relations Ministers’ Council has today approved model provisions that will be adopted throughout Australia from 1 January 2012 as the Work Health and Safety Act.
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There have been a number of significant changes to the Model Act since the draft was released for public comment including a new definition of officer and due diligence and a consultation obligation between duty-holders.
The definition of officer was the subject of much debate with a number of commentators raising concerns about the expansion of categories of persons caught by the proposed definition. The final model provisions adopt the definition in the Corporation Act. This restricts the categories of persons caught by the officer duty to the senior echelon of the company or organisation.
Due diligence definition
The most significant concession in the final provision was the insertion of a definition of due diligence.
Due diligence is defined to mean:
- to acquire and keep up to date knowledge of work health and safety matters
- to gain an understanding of the nature of the operations of the business or undertaking of the body
- to gain an understanding of the nature of the operations of the hazards and risks within those operations
- has available for use appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised
- to ensure that the body uses those resources and processes
- to ensure that the body has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information
- to ensure that the body has and implements processes for complying with any duty or obligations of the body under the Act
- verifying the provision and use of the resources and processes referred to above.
This is a welcomed amendment as it provides certainty to officers in relation to the extent of their duty to exercise due diligence.
Practically, what the duty requires is the development of Board and Senior Management level protocols for verifying due diligence in the organisation. This should be set out in an OHS Corporate Governance Statement and supporting procedures.
The final provisions create a new duty on the PCBU to consult not only with workers directly affected by the health and safety matter, but with other duty holders who have a duty in relation to the same matter. Organisations should consider carefully how they will seek to discharge this obligation in practice. It is recommended that the consultation process be systematic and recorded. One option is to adopt Interface Coordination Plans, widely used in the transport industry. Such plans would record the areas of overlap and record the agreement as to the manner in which the respective duties will be discharged.
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While the model provisions improve significantly on the consultation draft there remains a number of areas of ongoing concern. These include:
- provisions allowing the copying of documents obtained by a union exercising right of entry
- the lack of a “reasonable excuse” qualifier to the offence of coercion, as recommended by the Review panel, given the potentially broad application of that section
- the absence of a defence of “reasonable precautions” where the conduct or intent of an employee or agent is attributed to a PCBU resulting in an offence of unlawful discrimination
- very extensive powers of questioning of inspectors, including a lack of appropriate procedures surrounding the use of evidence that would otherwise be subject to legal professional privilege, to protect individual rights
- investigative powers of the regulator, including to require a person (even a passer by) to attend at a place and time nominated by the regulator to be interviewed
- a potential incentive for inspectors to not provide the required warning by not making clear that evidence obtained in the absence of the warning should not be admissible – leaving this issue to the discretion of the court
- the prohibition against discrimination applies to entering into or terminating a commercial contract, but does not refer to the terms offered for a contract
- the removal from Category 2 offences of the qualifier of a ‘high risk’ of death or serious injury, which will effectively allow almost all breaches to be Category 2 offences, not Category 3
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What you should now be doing to prepare
You should commence steps now to ensure that your business and officers will comply with the laws upon commencement. The detail of the model provisions are now known and will now be adopted, so you can proceed with confidence in transitioning towards them.
Reasons for starting now include:
- Contracts are being entered into now that will operate under the model laws. The contracts and supporting documents can be significant tools for ensuring compliance and also more effective health and safety management under the model laws;
- Key elements such as due diligence and consultation are structural in nature and can now be developed, with only minor modification (if any) required by relevant regulations relating to consultation;
- It is important that the structural and policy modifications are undertaken and embedded before the technical detail of the regulations is confronted, or those key enabling aspects may be overlooked;
- It typically takes 18 months to 2 years to undertake and embed organisational and policy change of the significance that will be required by the model laws.
There are 7 steps that every business needs to undertake to prepare for this new era in Work Health and Safety regulation:
- Legal risk analysis – the new primary duty has broader application than its predecessor. Businesses must undertake a legal risk analysis of their operations to ascertain the extent of their duties
- Review contracts to insert duty holder consultation arrangements and enabling provisions to allow you to discharge your duties. This is critical with long term contracts entered into over the next few months which will remain in place long after the commencement of the legislation.
- Implement interface coordination plans as a practical solution to the new duty to consult other duty holders
- Develop robust consultation processes given the expanded application of the duty to consult to cover workers including contractors and subcontractors
- Develop dispute resolution processes to minimise the need for regulatory involvement in your workplace
- Develop processes on right of entry and regulatory rights and obligations to ensure compliance with the new obligations
- Develop an OHS Corporate Governance Statement for the Board and Senior management to ensure compliance with their due diligence duty.
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