Ric Morgan, a Senior Associate at Allens Arthur Robinson, was interviewed recently by Boardroom Radio on the new OHS model legislation. Each lawyer seems to emphasise a different combination of features in the new proposed laws.
Morgan anticipates that minimal changes will be made to the draft law.
The interview is well worth listening to for a slightly different perspective on the issues.
Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different. While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest. Some are discussed below.
[Tooma’s full legal update is available HERE]
The duty of care will include
- “providing and maintaining a safe and healthy work environment;
- providing and maintaining safe plant and structures;
- providing and maintaining safe systems of work;
- ensuring safe use, handling, storage and transport of plant, structures and substances;
- providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
- providing any information, training, instruction or supervision that is necessary; and
- ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”
Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says
“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety. The extent of the duty as drafted in the model provisions arguably includes public safety matters….. In addition to public safety, arguably the provisions are capable of applying to product safety matters.”
Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.
“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.
Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”
The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some. The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives. It also broadens the social integration of OHS and environmental management which larger companies are already managed through an integrated structure.
There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years. Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda. This situation does not reflect the vast majority of workplace consultations on OHS matters.
Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue. It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.
However, Tooma says that
“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth. The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”
There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004. SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.
More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in. It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.
The Safety Conference scheduled for Sydney at the end of October 2009 has finally got an OHS issue that is contentious and is also a work in progress. The unions are starting to make noise on the OHS laws. The employer groups are manoeuvring cautiously. The safety professionals are largely silent (again) but the lawyers – the group with perhaps the most to gain from the new harmonised OHS laws – are set to analyse and debate.
A media statement from the conference promoters was distributed on September 8 2009 and, very differently from most media releases, is informative without being pushy. Below is the body of that statement:
Three issues are set to dominate discussion: the burden of proof, the personal liability of company officers, and the impact on prosecutions. Neil Foster, senior law lecturer from the University of Newcastle, believes personal liability is at the heart of the changes.
“The harmonisation process seems to have been driven by directors’ fears of personal liability and the hope that there would be some watering down of the laws,” he says. “In my view, the Model Act inappropriately waters down the personal responsibility of company officers, although I do support some of the proposed changes in this area, including the acknowledgement that the officer has obligations to exercise due diligence to protect the workers. But with the change to the current onus of proof provisions, it is quite possible that guilty people will now escape justice.”
Michael Tooma of Deacons law firm, who will moderate The Safety Conference’s harmonisation panel discussion, says that while current state laws differ in their approach to the approach to personal liability of officers, all will be reshaped by the proposed Model Act.
“Despite the range of liabilities, all have one thing in common: the officer will be personally liable only if their company commits an offence,” Mr Tooma says. “The new regime does not require this.”
“Under the approved recommendations for the new OHS laws, officers will be liable if they fail to exercise due diligence. That is, the duty has been recast as a positive obligation on officers to proactively ensure compliance with OHS laws rather than an attributed liability in the event of a breach by the company. This is a landmark shift in approach which will have a significant impact on OHS enforcement and compliance.”
The definition of “due diligence” may also be contentious.
“The Workplace Relations Ministers’ Council (WRMC) did not approve the recommendation for a definition of due diligence,” Mr Tooma says. “The Committee had recommended that due diligence be defined in line with existing case law on its meaning, drawn largely from NSW where the term has been in use for almost 30 years.”
“Instead, WRMC preferred to rely on the Courts to interpret due diligence. Practically, that means that the true harmonisation of the scope of the personal liability of officers may have some way to go as each State Court and Territory Court attempts to interpret due diligence in the context of the case before it until a case is brought to the High Court so that an authoritative determination of that term is made which is binding on all state and territory Courts.”
Michael Selinger of Holding Redlich Lawyers points out that company officers found guilty will face increased penalties, rising from the from the current maximum in NSW of two years in prison or fines of $55,000 to fines of up to $600,000 for an individual and five years in prison.
New South Wales employers, however, may enjoy some relief as the burden of proof shifts to prosecutors.
“The new Model Act will have a more significant impact on New South Wales employers than those in any other states because the Model Act is largely based on the Victorian and Queensland Acts,” says Mr Selinger.
“For New South Wales, the onus of proof will move away from the employer as a result of the inclusion of the qualifier of ‘reasonably practicable’ in the general duty to ensure safety under the Act. When it comes to proving liability, the prosecutor will now need to show the employer has not taken all reasonable steps to prevent injury.
“In 95 per cent of cases, shifting the burden of proof to the prosecutor won’t affect the outcome. This is because when an injury occurs, employers examine the workplace to see what actions need to be taken to prevent a recurrence – by doing that, they show that there were reasonable steps that could have been taken, which makes it easier for the prosecution to prove liability. To some extent, there’s always been this tension between trying to improve the safety system and protecting your legal position.”
“The legislation in NSW has historically been enforced more vigorously than in other jurisdictions but most OH&S regulators only initiate a prosecution if it is in the public interest and they have a good prospect of success. Under the new Act, there’s likely to be more of an emphasis on education and cooperation between the regulator and business. We won’t really know the answer to whether there’s likely to be fewer prosecutions until the new Act is implemented – at the end of the day, how it is enforced will be the key factor. The regulator will still have plenty of enforcement tools and there is likely to be a uniform enforcement policy applied across the country.”
On the other hand, Neil Foster believes the onus of proof belongs with employers.
“The Model Act has been legitimately described as ‘a race to the bottom’,” Mr Foster says. “The onus of proof should be placed on employers because they have the greatest control over safety: how hard people work; safety procedures; how money is spent; and safety policies. There is still a lot of carelessness in workplaces and WorkCover sensibly doesn’t launch prosecutions unless there’s a good chance the employer is guilty and hasn’t taken reasonable precautions. I think the NSW safety system has been working well.”
Scarlet Reid, special counsel for Henry Davis York says the impact of reversing the onus of proof is uncertain.
“From a practical perspective, this could make convictions more difficult to obtain in New South Wales,” she says. “In the absence of any changes that stipulate which courts hear prosecutions at first instance, it remains to be seen if this is in fact the case. It is questionable as to whether real uniformity can be achieved without examining this important issue.”
Ms Reid says employers were likely to benefit from other changes under the proposed Model Act.
“Defendants in NSW and Queensland should benefit from the proposed expanded appeal rights,” she says. “Defendants in NSW may also find comfort in the proposal to abolish the prosecutor’s right to appeal against an acquittal.”
If employers are winners under the changes, unions, who will lose the right to launch prosecutions, protest vigorously against the proposed Model Act, claiming it would be detrimental to safety. Neil Foster agrees.
“The changes to be brought in under the harmonisation process send a message from government to employers: safety’s been too tough and that we’re not so worried about it anymore. It’s very sad.”
WorkSafe Victoria is very keen for the safety advice and management discipline to become professional. It is providing considerable technical and financial support to the Safety Institute of Australia and other members of the Health and Safety Professionals Alliance (HaSPA). The current status of HaSPA in Australia has been discussed in other SafetyAtWorkBlog articles.
HaSPA likes to compare itself to other managerial professions such as accounting, medicine and the law, and is trying to establish a contemporary profession. One of the professions mentioned, law, an established profession for hundreds of years, is seriously considering the introduction of an ombudsman, a concept that should have been established already for the safety sector.
According to a media report in The Australian on 4 September 2009:
A taskforce of federal and state officials is working on a plan to create a national legal ombudsman with unprecedented power over the nation’s lawyers.
If the plan goes ahead, the ombudsman would be able to set standards for all lawyers, oversee the handling of all complaints from consumers and intervene with the profession’s state-based regulators.
One option being considered would establish the office of the legal ombudsman as a new national institution drawing authority from a network of uniform state laws.
This would unify the regulation of lawyers and give state governments a role in confirming prospective candidates for the new national office.
Lawyers, rather than taxpayers, could be asked to pay for the cost of establishing their new regulator.
The taskforce, which has been appointed by federal Attorney-General Robert McClelland, is examining the possibility of establishing the new office as the centrepiece for the promised regulatory overhaul of the legal profession.
OHS law in Australia is undergoing its most major national review in decades. Shouldn’t the safety profession also develop the “Office of the Safety Ombudsman”? The legal profession is doing all the work on a model.
Australia has a tradition of effective industry-based ombudsmen. A list is available online but the most publicly well-known would be the Telecommunications Industry Ombudsman.
[In the last couple of years the safety profession has heard from the Victorian Health Services Commissioner, Beth Wilson, on the purpose and role of the commission and how the safety profession can learn from her support, adjudication and advocacy. The commissioner is not an ombudsman but there may be a role for a safety commissioner to address WorkSafe’s concerns over the quality of safety advice being provided by safety professioanls to business. A video of Beth Wilson briefly discussing the role is available on YouTube.]
The application of an Ombudsman model in the safety profession should be discussed but similar objections will be raised to those of the legal profession in the article quoted above. Underpinning the objections is that an established profession is resistant to change and suspicious of relinquishing the power it has established over its lifetime.
If the safety advocates are truly committed to establishing a contemporary profession, the concept of a safety ombudsman must be discussed or else the system of self-regulation will continue and so will the lack of independence, the lack of accountability, the limited communication and the lack of faith by the general community that safety professionals can be trusted to do a good job.
The city in which SafetyAtWorkBlog is edited, Melbourne, is struggling to manage a spate of street violence – some racially-based, a lot influenced by alcohol and drugs. The Age newspaper carried a feature article on 25 August 2009 discussing the concept of “restorative justice”, a concept that is barely known outside of some legal or civil liberties areas, in relation to handling offenders and victims of street violence.
Only last week, there was an important launch of a research report into the application of restorative justice for those affected by workplace fatalities. It is a fascinating new area of application for restorative justice in Australia and one that seems a more natural fit than for the more common acts of violence.
The research project builds on a lot of the work already undertaken into workplace fatalities by the Creative Ministries Network. Their research, mentioned in the project report, has shown
“…that families and company directors, managers and workers grieving a traumatic death suffer more prolonged and complicated grief due to delays in legal proceedings, public disclosure of personal information, lack of information, and increased stress from involvement in the prosecution process and coronial and other litigated processes.”
Over the next few days SafetyAtWorkBlog will run a series of articles on the concept and its application as well as being able to make available copies of the research reports and transcripts of interviews with research participants.
As SafetyAtWorkBlog has no legal expertise restorative justice needed some investigation. Below are some useful definitions and descriptions:
“Restorative justice is a theory of justice that relies on reconciliation rather than punishment. The theory relies on the idea that a well-functioning society operates with a balance of rights and responsibilities. When an incident occurs which upsets that balance, methods must be found to restore the balance, so that members of the community, the victim, and offender, can come to terms with the incident and carry on with their lives.”
“Restorative justice brings victims, offenders and communities together to decide on a response to a particular crime. It’s about putting victims’ needs at the centre of the criminal justice system and finding positive solutions to crime by encouraging offenders to face up to their actions.”
“The term “restorative justice” is often used to describe many different practices that occur at various stages of the criminal justice system including:
- Diversion from court prosecution (i.e. to a separate process for determining justice);
- Actions taken in parallel with court decisions (e.g. referral to health, education and employment assessment, etc.); and
- Meetings between victims and offenders at any stage of the criminal process (e.g. arrest, pres-sentence and prison release.”
[Of course, one can also read the Wikipedia entry)
The intention of restorative justice has more often been to reduce the likelihood of a re-offence. The application of restorative justice for workplace fatalities seems to be slightly different. In America, it would be difficult to avoid using the word “closure” (a phrase SafetyAtWorkBlog refuses to use as there is never a close to grief, only a way of living with it) as one of the aims of the workplace fatality application.
There are many effects of a workplace fatality on executives and companies. It is hard to imagine a company that, after one fatality, would not do all it could to avoid another. Restorative justice has the potential to heal the surviving victims – family and company. It can also reduce the animosity that often results from the traditional adversarial justice system, particularly for those participants who may not have been exposed to such processes before.
On 1 July 2009, the Australian industrial relations (IR) climate changed with the introduction of the Fair Work Act. Regardless of the politics of the new Act’s origin, this legislation changes the way that working conditions for Australians are negotiated and set.
The Fair Work Act has no relevance to occupational health and safety, so why mention this on SafetyAtWorkBlog?
The new IR legislation should reduce the conflict that has been existent in workplace negotiations. The new industrial climate is consultative and forward-looking. In fact, the government is hoping that, to some extent, this legislation reboots industrial relations (to borrow a phrase from current international diplomacy).
It is in this IR climate, and consultative structure, that OHS issues will need to be discussed and negotiated in the future.
In a webinar conducted by SmartCompany and Gadens Lawyers on 9 July 2009, the openness of the information/consultative processes was stressed by panellist, Kathryn Dent.
This positive management climate reflected that presented in an earlier seminar conducted by Douglas Workplace Lawyers. Fair Work Australia Commissioner Lewin and lawyer, Andrew Douglas, spoke about how the new IR system is more inclusive than the previous WorkChoices systems. However, they also admitted that the Fair Work Act has nebulous support documentation and information.
The level of prescription is much less than previous. This allows for less restrictive negotiation but it also means that clarity may rely on determinations made by the tribunal. Commissioner Lewin concurred with Andrew Douglas’ point that the operations of the Fair Work system will require several years of “settling in” and some adjustments depending on determinations.
When raising OHS issues for the next year or so in Australia, employees and professionals need to be reminded that many of the managers and employers with whom they are dealing may well be feeling swamped by new industrial relations processes. This distraction may be understandable but OHS obligations remain the same regardless of other management issues.
OHS may seem to be more messy during this period as the IR overlaps with the “safe systems of work”. Unless IR is already part of the responsibilities of an OHS professional, the advice is to keep away from the details of the Fair Work Act. However it is recommended that at least one seminar on the Fair Work Act be attended so that the “tone” of the new legislation is understood. More important is how the Act is to be applied within the workplaces of one’s clients or employer.
Safety management systems will need to be tweaked to fit with the new consultative aims and processes. Of course, they will need to be tweaked again once the harmonised national OHS legislation comes begins in 2010. Don’t expect stability in Australian workplaces for the next couple of years.
In 2006, one of the earliest editions of the SafetyAtWork podcast featured several speakers on issues that remain topical. The podcast is available for download
Anne Mainsbridge, currently a Solicitor with the Public Interest Advocacy Centre talks about her report on environmental tobacco smoke.
This is followed by Associate Professor Tony LaMontagne of the University of Melbourne talking about a systematic approach to managing workplace stress. This was a report that was published by the Victorian Health Department and, as such, slipped by many OHS professionals. The report is now available for download
The audio production is rough for such an early podcast, and I apologise, but I think you will find the content of interest.