Occupational Safety and Health Western Australia

Transcription

1 BULLETIN 7 OCTOBER 2009 Print Post Approved: PP / LexisNexis Butterworths Occupational Safety and Health Western Australia Contents of this issue Author: Kevin Brown B(Juris), LLB(UWA), LLM(Strath) Page National review into model Occupational Health and Safety (OHS) Laws: Safe Work Act 2009 Release of Exposure Draft of the Model Safe Work Provisions September Main features... 3 Political concerns... 3 Union power... 4 Penalties... 4 Mining... 4 Where to next?... 5

2 Note: Please file this bulletin behind the guide card Bulletins. 2...Bulletin 7 LexisNexis

3 National review into model Occupational Health and Safety (OHS) Laws: Safe Work Act 2009 Release of Exposure Draft of the model Safe Work Provisions September 2009 On the 25 September 2009, the Workplace Relations Ministers Council (WRMC) agreed to release an exposure draft of the model Safe Work Act 2009 for public comment. 1 It is envisaged that each state and territory will adopt the model Safe Work Act 2009 in order to achieve national uniformity on the topic of workplace safety. Public comment by way of written submission is now being sought on specific areas of the model legislation and submissions close on 9 November Access to the legislation and other key documents including a discussion paper can be found at: 2 The draft legislation The draft legislation closely follows the Western Australian (WA) legislation regarding the presumption of innocence, by placing the onus on the prosecution to prove guilt. This also follows the approach taken in the state of Victoria. However, in New South Wales (NSW), the approach has been to presume guilt and requires the person prosecuted to provide a defence. 3 This issue has been of concern to unions in NSW. 4 The remaining major provisions in the draft legislation largely adhere to the recommendations made in the earlier first and second reports of the Review Panel. However, one feature that differs relates to the first report s introduction of a new duty of care for people or organisations who provide OHS information, advice or OHS services. It was identified in Bulletin 6 (August 2009) that this would be a new duty in WA. That new duty has been omitted from the model Safe Work Act Some features of the proposed model Safe Work Act 2009 include: The primary duty is placed upon the person who conducts a business or undertaking, rather than the current position in WA where it is placed on the employer (s 18). The meaning of reasonably practicable, broadly speaking, retains the current position in WA (s 17). There is an extension of the liability, from the current situation in WA, to include unincorporated associations and partnerships. This is found in the definition of person (s 4). Officers owe a positive duty to exercise due diligence to ensure that the organisation complies with its duties of care, having regard to the officer s responsibilities and position (s 26). This is also not currently found in the WA legislation. There are significant increases to the maximum penalties compared to those that are now currently contained in the WA legislation. Maximum fines will increase to 3 million dollars for corporations (s 30). 5 See Bulletin 6 (August 2009) for an outline of the differences between the existing Occupational Safety and Health Act 1984 (WA) and the new proposed legislation. Political concerns The Hon Troy Buswell MLA, Minister for Commerce, is reported on the Department of Commerce website 6 to be concerned about the following: the introduction of a conciliation concept for resolution of issues; power for health and safety representatives to stop work; reverse onus of proof for discrimination issues; Bulletin 7 LexisNexis...3

4 level of penalties; and right of entry. Prior to the release of the new proposed model Safe Work Act 2009 various media reports 7 quoted Mr Buswell stating that WA would be unlikely to agree or sign up to the national Safe Work Australia regime. 8 The government is concerned that the scheme model preferred by the union movement may make the system too harsh on employers and shift the goal posts to appease the unions. Union power The power of union officials to enter premises to investigate accidents and advise workers in relation to health and safety matters under the model Safe Work Act 2009, is a significant change from the position currently found in the WA OHS legislation. The role of unions is even mentioned in the objects of the legislation. 9 Part 6 of the model legislation headed Workplace entry by OHS entry permit holders gives unions the right to enter workplaces for the purpose of inquiring into suspected contraventions that affect a union member. 10 A union official undertaking this task will be required to undertake training before being able to exercise these rights and obtain a permit to do so. 11 There is no requirement in s 160 for an actual breach to occur and the holding of a reasonable suspicion qualifies the right of entry. There is no requirement for the union to provide the person conducting the business or undertaking with any prior notice. As long as notification takes place as soon as reasonably practicable after exercising the right of entry, this will suffice. 12 Once a union official has used this power of entry, there is power for the union official to investigate and consult in relation to the suspected breach. 13 This includes a power to inspect systems of work, plant and substances. The right to inspect records is, however, restricted to those situations where 24 hours written notice is given. 14 The power of union officials to enter premises is a significant change from the position in the Occupational Safety and Health Act 1984 (WA), where no specific right of entry is given to trade union officials. 15 Even though the WA Government has shown that it has concerns with the introduction of union power, it is interesting to view media reports that indicate that the unions are themselves dissatisfied with the approach taken in the draft legislation. These reports indicate that the ACTU is concerned that the national system could lower safety standards and that workers will be left powerless if the regulator decides not to prosecute. 16 This view effectively indicates a preference for the NSW model, in which unions are able to mount prosecutions. The proposed Safe Work Act 2009, only allows a regulator or approved inspector to commence a prosecution and does not specifically provide for union involvement in the prosecution process. Although this is a concern for unions in NSW, this is not significantly different from the legislation that is current in WA. 17 Penalties The first report indicated that the penalties in the national legislation would be significantly greater that those found in the current WA legislation. The model Safe Work Act 2009 adopts the proposals in the second report and specifies penalties with amounts of up to $3 million for corporations. Mining In Bulletin 6 (August 2009) it was noted that mine safety and health appear to be covered by the proposed national model. This is confirmed by the definition of workplace in s 8 of the model Safe Work Act 2009 being drafted in wide terms. This has some interesting implications, including the effective removal of a mine manager s duties currently found in the Mines Safety and Inspection Act 1994 (WA). 18 Notwithstanding this significant change to the approach of separate legislation for the mining industry in WA, in a joint media release with the Australian Industry Group and the Business Council of Australia, the Minerals Council of Australia embraced the concept of a single system of laws to deliver the best safety outcomes in Australian workplaces Bulletin 7 LexisNexis

5 Neither the Minister of Mines and Petroleum, Hon Norman Moore, nor the Department of Mines and Petroleum appear to have provided any media releases on their websites dealing with the impact of the Safe Work Act 2009 on the Mines Safety and Inspection Act 1994 (WA). Where to next? It is presumed that the WA Government will allow for the 6 weeks public comment period to expire before making a final determination on whether to support or reject this national proposal. The WA Government has shown that it is prepared to reject a uniform approach to a national system dealing with industrial relations. 20 In December 2009, the Model OHS legislation will be submitted to WRMC for agreement. The draft national regulations will be developed in the first half of 2010 for public release in the latter half of Footnotes 1. Hon Julia Gillard, Minister for Employment and Workplace Relations, Communiqué from Australian, State, Territory and New Zealand Workplace Relations Ministers Council, Media Statement, 25 September Safe Work Australia, Model Legislation: Public Comment, Commonwealth of Australia, accessed 2 October The difference in approach is discussed by K Phillips, The direct path to a safer workplace, Business Spectator, 28 September See I Salusinsky, Unions Buck Draft OHS Laws, The Australian, 26 September Safe Work Australia, Exposure Draft: Model Act for Occupational Health and Safety: Discussion Paper, Appendix 3 proposed penalties under the Model OHS Act, September 2009, accessed 6 October 2009, 6. Department of Commerce, WorkSafe: Leglisation, Public Comment, Government of WA, October 2009, accessed 2 October 2009, 7. See AAP, WA will not be bullied into national OH&S system: Buswell, WAToday.com.au, accessed 2 October 2009, 8. AAP, WA unlikely to accept new OH&S regime, The Western Australian, 25 September 2009, accessed 2 October 2009, and AAP, WA will not be bullied into national OH&S system: Buswell, WAToday.com.au, accessed 2 October 2009, 9. Safe Work Act 2009 (Model Safe Work Provisions) (Cth) s Safe Work Act 2009 (Model Safe Work Provisions) (Cth) s Safe Work Act 2009 (Model Safe Work Provisions) (Cth) ss Safe Work Act 2009 (Model Safe Work Provisions) (Cth) s Safe Work Act 2009 (Model Safe Work Provisions) (Cth) s Safe Work Act 2009 (Model Safe Work Provisions) (Cth) s Although safety and health representatives, who are not necessarily connected with the union, currently have some rights relating to inspect the workplace: Occupational Safety and Health Act 1984 subss 33(1)(a) and (b). 16. Top union condemns proposed national OHS regime, The Western Australian, 25 September 2009, accessed 2 October 2009, AAP, WA unlikely to accept new OH&S regime, The Western Australian, 25 September 2009, accessed 2 October 2009, B Schneiders, Worker Safety put at risk by laws, The Age, 26 September 2009, accessed 2 October 2009, Safe Work Act 2009 (Model Safe Work Provisions) (Cth) s For example s 13 of the Mines Safety and Inspection Act 1994 imposes general duties on mine managers. 19. Australian Industry Group, the Business Council of Australia, and the Minerals Council of Australia, Business Groups on the Same Page on OHS Harmonisation, Media Release, 24 September Hon Julia Gillard, Minister for Employment and Workplace Relations, Communiqué from Australian, State, Territory and New Zealand Workplace Relations Ministers Council, Media Statement, 25 September Bulletin 7 LexisNexis...5

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