Safe Work Australia (SWA) has released the latest communique following the Workplace Relations Ministers’ Council meeting on 9 December 2009. Various amendments have been made to the draft Act following the public submissions period. Those amendments that SWA consider significant are:
- adoption of the definition of ‘officer’ in accordance with the Corporations Act 2001 and the definition of ‘due diligence’ to clarify officers’ duties
- a duty for the persons conducting a business or undertaking (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
- the requirement for a PCBU to provide training to a health and safety representative (HSR) within three months of a request for training
- removal of compensation orders as a sentencing option
- removal of requirements for union right of entry which are already prescribed under the Fair Work Act 2009
- restructuring of the most serious category of offence to a reckless endangerment offence when a duty holders’ conduct has exposed a person to a risk of death or serious injury of another person
- monetary penalties, not penalty units, used to ensure consistency between jurisdictions
- a 14 day timeframe for commencing negotiations between a PCBU and workgroup
- allowing a PCBU to refuse entry on ‘reasonable grounds’ to a person chosen by the HSR to provide assistance, if no relevant assistance could be provided by the nominated person
- being subject to a criminal penalty regime, except in relation to right of entry offences in Part 7. Right of entry offences in Part 7 would be subject to a civil penalty regime consistent with that in the Fair Work Act 2009. A framework will need to be established for civil penalties, and
- penalties for the non-duty of care offences for corporations, ranging from a maximum of $500 000 for serious breaches to a maximum of $10 000 for minor administrative breaches.
Significantly, all the submissions that pushed for the inclusion of a “suitably qualified” OHS professional seem to have missed out. Clarification or confirmation of this is being sought from Safe Work Australia.
UPDATE – 11 December 2009
The Model Work Health and Safety Act has now been posted on the Safe Work Australia website and is available for download HERE