The OHS recommendations the Australian Government rejected

According to the Communiqué of the Workplace Relations Ministers’ Council on 18 May 2009, the following issues should be considered when drafting the new OHS legislation

“Application of the primary duty of care to any person conducting a business or undertaking

The panel recommends that the primary duty of care should be owed by any person conducting a business or undertaking.  The objective of this recommendation is to move away from the traditional emphasis on the employment relationship as the determiner of the primary duty, to provide greater health and safety protection for all persons involved in, or affected by, work activity.  Care needs to be taken during drafting to ensure that the scope of the duty is limited to matters of occupational health and safety and does not further extend into areas of public safety that are not related to the workplace activity. “

The first part of this is recognition of the variety of workplaces Australia now has, the number of people within worksites who are not employees and the previous issues of OHS and unpaid volunteers.  It seems to expand to matters of public liability but then, curiously, pulls back to emphasise occupational health and safety.  As Michael Tooma has noted, circumstances seem to have passed beyond the arbitrariness of the occupational categorisation.

It is a useful exercise to look at some of the recommendations that were not taken up by the Government as many indicate issues of further confusion.  Also many of the early speakers about the review panel reports were confident that they had “got it right”, some even seemed cocky.  They should have known that a report is one thing but a Government response is what makes the recommendations real.

There were several responses that dealt with simple terminology and many that were agreed in principle but require more work, often suggested through the drafting phase.  This will occur within the new Safe Work Australia organisation.

Recommendation 28

Domestic premises should be excluded from the definition of a workplace for the purposes of the duty of care of the person with management or control unless specifically included by regulation. Note: ‘Workplace’ will be defined in our second report.

Response: Not agreed

Workers who work in private homes should be subject to OHS protections.  While the best way to give effect to this principle will need to be considered in the drafting of the model Act, a possible alternative approach would be to define ‘workplace’ to include any place where work is carried out, and to exclude domestic premises to the extent they are being used as domestic premises.  OHS inspectors should also have right of entry to domestic premises for OHS purposes. There is a need for consistency with recommendations 17 and 20 and to be mindful of issues raised by common property in strata titles.

The inclusion of Recommendation 28 was always peculiar as it seemed to ignore the issues of teleworking, working-from-home and home-based businesses that the small business and professional services sectors have been dealing with for many years.

Many have advised setting up defined home workplaces for the purposes of, principally, taxation.  The government response leads to the concept of a “workplace bubble”.  If someone is working they take their OHS obligations with them wherever they are performing work tasks.  For instance, when driving from the office to a client, the person is within three different work environments – office to car to client.  The OHS obligations are constantly with the worker.  The “workplace bubble” also contains the employer’s policies, procedures, codes of conduct, etc, as well as the social norms and rules expected by the community.

That OHS inspectors are allowed into domestic premises helps clearly define the powers of the inspectors consistently across workplaces.  An interesting element will be the protocols OHS inspectors should follow when in a domestic workplace.

Recommendation 37

The model Act should place a duty of care on any person providing OHS advice, services or products that are relied upon by other duty holders to comply with their obligations under the model Act.

Response: Not agreed

This duty is considered unnecessary as it would be covered by the general duty which applies to persons conducting a business or undertaking.

The matter of OHS service providers was curious and caused some concern when the review reports were discussed at information sessions and conferences.  Speakers emphasised that this duty had always existed but that it was useful to make the duty more overt.

The Government disagreed and placed this firmly under the general duties.  Those safety professionals who had been reassessing their professional indemnity policies in light of Recommendation 37 should still review the policy but also ask themselves who was advocating this overt focus on their profession and what was to be gained.

The rejection of this recommendation also places considerable pressure on the HaSPA program being rolled out in Australia.  The accountability and enforcement of the code of conduct will be crucial in supporting the general duties.

Recommendation 53

Prosecutions for the most serious breaches (i.e. category 1 offences, see recommendation 55) should be brought on indictment, with other offences dealt with summarily.

Response: Not agreed

This issue should be dealt with outside the model OHS laws on the basis that the recommendation would cause unwarranted and in a few cases irreconcilable conflicts with existing criminal and procedural laws in the jurisdictions.

This should be left to the legal experts but it is interesting to see that the categorisation of offences has been agreed.

Recommendation 73

The model Act should expressly state the dollar amounts of the maximum fines for each category of breach of a duty of care.

Response: Not agreed

Penalty units should be used instead of dollar amounts which make it easier to update the maximum penalty amount either through linking them to the CPI or through regulatory amendments. Guidance material could set out the monetary amounts.

The point of recommendation 73 is obvious but has lost out to the need to minimise the effort in regulatory amendments.  What this means in reality is that the OHS regulators will need to be even more communicative in translating penalty units to real money.

Recommendation 88

The model Act should define “due diligence” for the purposes of the duty of care of officers, to provide direction as to the appropriate role of an officer in OHS and how compliance may be achieved.

The definition should be stated to include the following elements:

  1. The standard for the officer is to be assessed against what a reasonable person in the position of the officer would do
  2. The officer is required to take reasonable steps proactively and regularly to ensure:

a)     up to date knowledge of OHS laws and compliance requirements;

b)     an understanding of the nature of the operations of the entity and generally the hazards and risks associated with those operations;

c)     that the entity has available and uses appropriate resources and processes to enable the identification and elimination or control of specific OHS hazards and risks associated with the operations of the entity;

d)     verification of the implementation by the entity of the matters referred to in c; and

e)     a process for receiving, considering & ensuring a timely response to information regarding incidents, identified hazards and risks.

Response: Not agreed

Case law should be relied upon to define ‘due diligence’.

There is a missed opportunity here for a sub-set of OHS elements within the broader “due diligence”.  Many companies have integrated OHS within the corporate processes but just as many have not.  Accepting recommendation 88 would have integrated OHS with risk management, due diligence, corporate governance, and all those other business practices where OHS is scrabbling for traction

Recommendation 139

The model Act should provide that persons conducting a business or undertaking must, where reasonably practicable, employ or engage a suitably qualified person to provide advice on health and safety matters.

The qualifications of persons providing such advice should be addressed in the regulations.

Provision should be made along the lines of the Queensland Act for the appointment by persons conducting a business or undertaking of WHSOs and further consideration should be given to how that requirement can be extended to non-traditional work arrangements that normally involve thirty or more workers.

Response: Not agreed

In relation to the first and second paragraphs, such provisions should not be included in the model Act, as an unintended consequence could be that persons conducting a business or undertaking would be encouraged to delegate their responsibilities.  The creation of WHSOs, as per the third paragraph, is also opposed.

The WHSO is dead.  This recommendation would have underpinned the developing safety profession in Australia but also made the profession static, and perhaps lazy, because they had an easy “in” to business.

The rejection is curious when based on “an unintended consequence could be that persons conducting a business or undertaking would be encouraged to delegate their responsibilities”.  Has this been the experience with WHSOs in Queensland?

It would have been useful to have a certified OHS professional but maybe the unions’ trade practices concerns with HaSPA gained the ear of government through this process.

Recommendation 146

The model Act should place an obligation on workers to report any illness, injury, accident, risk or hazard arising from the conduct of the work, of which they are aware, to the person conducting the business or undertaking or (where this is a different person) the person with management or control of the workplace. The obligation should also make clear that it in no way impinges on a worker’s ability to report an OHS issue to the regulator at any time.

Response: Not agreed

Serious omissions would be captured by the general duty in recommendation 46 and this is an unnecessary provision.

The regulators may be disappointed that Incident Notification is not prominent in the Act itself.  The Victorian OHS Act seemed to provide more certainty to the regulator by moving the obligation from regulations to the principle Act.  There are a lot of administrative details behind Incident Notification and it will be an area to monitor as the legislation is drafted.

Recommendation 231

The model Act should provide for:

  1. the imputation to a corporation of the conduct and the state of mind of officers, employees and agents of the corporation acting within the scope of their actual or apparent authority; and
  2. a defence for a corporation if it is proved that the corporation took ‘all reasonable and practicable measures to prevent the offence occurring.

Note: This recommendation was previously 232.

Response: Part 1 Agreed; Part 2 Not agreed

In relation to the first part of this recommendation, the Criminal Code sets out rules for attributing criminal responsibility to a body corporate in these circumstances and regard should be had to the Criminal Code in drafting the provisions.

The second part of this recommendation is unnecessary due to the reasonably practicable qualifier in the general duty.

One has to wonder why Part 2 of recommendation 231 was included.  Why should a corporation get a “get out of jail free” card and not all businesses?  This is the stuff that contributes to conspiracy theories and the government was right in saying corporations have the same general duty of care as anyone else.

Kevin Jones

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