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

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National Model OHS Laws and their impact

in South Australia

Tony MacHarperSafeWork SADepartment of the Premier and Cabinet

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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

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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

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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

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Structure of the Model WHS Act

The new Act will be called theWork Health & Safety Act

Scope, objects, definitions

Duties of care and other obligations

Consultation, participation and representations

Protection from discrimination

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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

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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

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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

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Duties of Care – Model Act

Primary Duty of Care

Person conductingbusiness or undertaking

Specific classes of dutyholders

Relevant StandardDuties associatedwith the activity

Nature of theactivity

Operation of the business orundertaking

Organisational decisionmaking and governance

Work activities (includingsupervision)

Circumstantial attendance atthe workplace (i.e. visitors)

Officers’ Duty of Care

Workers’ Duty of Care

Duty of Care of Others(i.e. at a workplace)

Reasonably practicable

Due diligence

Reasonable care

Reasonable care

Relationship between recommended duties of care

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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.

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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)

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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 dutiesConfirms sharing of information

the PCBU concept ‘casts a wider net’

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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

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

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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

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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

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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

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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

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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

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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.

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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, andholds, or will hold, a Fair Work Act

2009 entry permit or the relevant state or territory industrial law entry permit.

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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

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Penalties – OHS ActCategories based on degree of ‘culpability’

and risk/degree of harm

Category 1

Category 2

Category 3

Corporations: $3m

Officers: $600k / 5 years jail

Worker: $300k / 5 years jail

Corporations: $1.5m

Officers: $300k Workers: $150k

Corporations: $500k

Officers: $100k

$50k

Category 1

Category 2

Category 3

Corporations: $3m

Officers: $600k / 5 years jail

Workers: $300k / 5 years jail

Corporations: $1.5m

Officers: $300k

Workers: $150k

Corporations: $500k

Officers: $100k

Workers: $50k

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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

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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

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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.

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National TimelineNational Timeline

14-15 October: Strategic Issues Group (SIG) meeting – focus on Model Codes of Practice

25 November: SIG meeting to finalise regulatory package

2010 2011

Oct Nov Dec FebJan Mar Apr May Jun Jul Aug Sep Oct Nov Dec

2 December: Safe Work Australia Council to endorse regulatory package

7 Dec 2010 to 4 April 2011: Public Comment on draft regulatory package

June 2011: Regulatory package goes to Workplace Ministers for approval

End of 2011: Model WHS Laws package finalised…ready for implementation

3-5 November: SIG meeting to progress Draft Regulations and COPs

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SA TimelineSA Timeline

2010 2011

Oct Nov Dec FebJan Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Late 2010 to early 2011: Public Comment on Jurisdictional Notes for SA WHS Bill

7 Dec 2010 to 4 April 2011: Public Comment on draft regulatory package

Feb-March 2011: SA WHS Bill tabled in Parliament - Parliamentary process commences to enact SA WHS Act for 2012

From July 2011: Process starts for SA to adopt WHS Regulations and Priority Codes of Practice

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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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Thank You