Public Comment Draft - Health & Safety Act, Stage 1 Model Regulations

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1 Public Comment Response Form Exposure Draft for Model Act and Stage 1 Model Regulations You are invited to answer any and all of the questions listed below which have been taken from the Exposure Draft Discussion Paper: Questions Part 1 Preliminary Matters Q1. What is the best title for the model Act? Australian Workplace Health & Safety Act Q2. Does the definition of officer clearly capture those individuals who should have officer duties under the model Act? The current interpretation of the proposed Act clearly captures the Duties defined for the definition of an Officer in law. Q3. There is some overlap between the definitions of plant and structure, as many types of plant have structural attributes, and vice versa. Should plant and structure be defined in a way that removes this overlap? There must be a separation between plant and/or structure and a clear explanation must be created to confirm the differences of the associated risks in each area of work related activities. The proposed Act does not create a specific and clear understanding of this issue, the legal ramification are of a significant nature and will gather a huge momentum in the legal professions income potential and total confusion for small businesses to achieve a fair go. 1

2 Q4. Are there any other types of activities or undertakings that should be specifically included or excluded from application of the model Act? For example, should residential strata title body corporates be excluded? The inclusion of specific work related activities must take into consideration outworkers clergy volunteers work experience overseas students in work related activities to complete curricula specific visa holders and any activity nor covered by an award. No exception should be made for Strata bodies rather it should be strengthened by enforcing greater emphasis on annual controls over property and compliance. Q5. Is the scope of the suppliers duty appropriate? In my view any person who takes control of a product/plant/implement or structure for future selling or passing on to another party for the purpose of work must take full responsibility under the proposed Act in full, subsequently this organisation must share in this responsibility. The separation of Duty of Care is in my view misguided. Q6. Is the scope of the worker definition appropriate? Should it cover students gaining work experience? The main area of concern are Registered Training Organisation and must take into consideration outworkers clergy volunteers work experience overseas students in work related activities to complete curricula specific visa holders and any activity not covered by an award. Q7. Is the definition of workplace appropriate? The definition is clear and spells out the responsibilities in a precise and reasonable English level of understanding. Part 2 Safety Duties Q8. Do the principles that apply to the duties of care give clear guidance on what is expected? In my view there is a lack of clarity in the definition and application of this part of the Act and it requires a more precise language other then loose interpretations. 2

3 Q9. Is the definition of reasonably practicable appropriate in this context? The definition of reasonable practicable is to interpretive in the context of law and should spell out in more clear terms what the legislator is trying say or implement with this legislation. The most important intention by the legislator, in my view, is to create a safe workplace which is just and fair in its application of industrial justice. Q10. Should the definition of reasonably practicable be exhaustive i.e. so only matters listed may be considered in determining compliance with the duty? The grouping of issues of compliance (Duty of Care) must be more specific in details and clearly identify individual areas of responsibility of workplace matters considered to be of a serious nature. The question of reasonable practicable gives me a confusing view of the proposed Act and further to that it will create a legalistic nightmare for small businesses again, however the legal profession will rejoice. Q11. Is the proposed scope of the primary duty appropriate? I only have a problem with the definition of reasonable practicable in this instance of the QAs. Q12. The model Act requires the provision of, so far as is reasonably practicable, any information, training and instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work (Clause 18(4)(f)). Should this requirement expressly require that the information etc. be provided in an appropriate language or languages, or provided at a level that can be understood by the workers? The associated Regulation and the proposed Act must identify the training requirements of each sector of industry with particular emphasis to each industry. The responsibility must be placed into the hands of the employer, employers must initiate internal training for all workplace activities prior to commencement of any work related activities or commencement of work. The usage of registered training organisation must 3

4 be discouraged as training providers provide Generic training and not workplace specific training. The legislator must provide competency confirmation training material and assistance more appropriate to the needs of small businesses, not as currently provided. Q13. The model Act requires, so far as is reasonably practicable, the provision of adequate facilities for the welfare of workers at work (Clause 18(4)(e)). Should this provision be drafted to require access to such facilities (e.g. to take account of requirements for mobile workplaces)? The complexity of the Australian workplace requires a diversity of different assessment of workplace amenities, however a clear understanding must be made subject to smaller workplaces who may have difficulties to provide those facilities and the possibility of exemptions permitted subject to number of employees. The area of shopping centres is of considerable concern as most centres do not have adequate staff facilities available and most of the interest is focused on space usage and rentals. Q14. Is the scope of the duties related to specific activities appropriate? I only have a problem with the definition of reasonable practicable in this instance of the QAs. Q15. In determining whether a worker failed to take reasonable care, should regard be had to what the worker knew about the relevant circumstances? Again I have a problem with the definition of reasonable practicable in the event that the employer has complied with his obligation of duty of care the employee must be subject to the same form of responsibility. Q16. Is the treatment of volunteers under the model Act appropriate? The interpretation given to volunteers needs to give consideration to a variety of issues such as age work load risk assessment of capacity risk to others etc. etc. and in particular QA emphasis must be placed on relevant training not a generic approach with equal responsibilities confirmed. 4

5 Q17. Are the range and levels of penalties proposed above appropriate, taking account of the levels set for breaches of duties of care by the WRMC? I m in full agreement with the proposed penalty provisions. Q18. What should the maximum penalty be for a contravention of the model regulations? I m in full agreement with the proposed penalty provisions. Q19. The intention is that all contraventions of the model Act be criminal offences. Is this appropriate or should some non-duty of care offences be subject to civil sanctions e.g. failure to display a list of HSRs at the workplace, offences relating to right of entry? We would suggest that the proposed Act limits the penalty interpretation only to the maximum suggested penalties in category 1-3 as a criminal offence and uses category 4-7 as a non criminal expectation in a court of law and further that a court cannot use category 4-7 in the context of a criminal offence other then if there is a clear collusion between penalties 1-3 against categories 4-7. Recommendation 129 must be ignored as a frivolous attempt to confuse the issue of workplace safety. Part 3 Other Obligations Q20. Is the list of notifiable incidents sufficiently clear and objective, so duty holders easily understand their obligations? 5

6 We would agree that the penalties listed are appropriate. Part 4 Consultation, participation and representation Q21. Is the proposed scope of duty to consult workers appropriate? Yes: We would agree that the listed scope is appropriate. Q22. Should the model Act include a procedure to follow if agreement on a consultation procedure cannot be reached? Yes: there should be an external process in place by external parties agreeable to both parties, however not to the exclusion to other than a union, such as an accountant or OH&S management companies. Q23. Clause 49 allows work groups to be determined for workers engaged in 2 or more businesses or undertakings. Should such arrangements be by agreement only, i.e.with no prescribed procedure if negotiations fail? Yes: there should be an external process in place by external parties agreeable to both parties, however not to the exclusion to other than a union, such as an accountant or OH&S management companies. Q24. Negotiations for work groups must be commenced within a reasonable time. Should a time limit be prescribed e.g. 14, 21 or 28 days? The definition of reasonable time must not be part of the equation as each company should be compliant with current legislation in each state and further that the variances, between the existing and the new proposed Act are in alignment with each other so 14 days must be considered. 6

7 Q25. Elections for HSRs and possibly deputy HSRs must be conducted as soon as reasonably practicable after the relevant work groups are established, or after a request for an election is received if work groups are already established. Should a time limit be prescribed? The interpretation as soon as reasonably practicable gives me a problem, subsequently I agree that a time frame must be set of 14 days, not as soon as reasonably practicable. Q26. The model Act requires that the HSR training must take place within a reasonable time, to accommodate a range of circumstances. For example, it may take longer for HSRs working in rural or remote regions to attend an approved course that may not be available in their area. Should a time limit be specified within which the training must be provided? The interpretation as soon as reasonably practicable gives me a problem, subsequently I agree that a time frame must be set of 21 days, not as soon as reasonably practicable, however consideration must be given to different learning strategies such as; online, RPL, RCC. Q27. The model Act requires that a health and safety committee be established within 2 months of the request being made. Six of the current OHS Acts include such a timeframe, which varies across jurisdictions from 3 weeks to 3 months. Is the proposed time limit of 2 months appropriate? The interpretation as soon as reasonably practicable gives me a problem, subsequently I agree that a time frame must be set of 1 month, not as soon as reasonably practicable, however consideration must be given to different learning strategies such as; online, RPL, RCC. 7

8 Q28. The Fair Work Act 2009 (Cth) (Fair Work Act) refers to ceasing work on the basis of a reasonable concern of the employee about an imminent risk to his or her health and safety, while the model Act refers to reasonable grounds. Should the terminology in clauses 75 and 76 be aligned with the Fair Work Act? No: it should not align with the (Fair Work Act 2009) and must be an independent action of compliance under the new Act. Q29. Should a health and safety representative be required to complete approved training before being able to direct that work cease under these provisions? Training should be provided by the employer within 14 days of commencement as the Health and safety representative. Q30. Should a health and safety representative be required to complete approved training before being able to issue a PIN under these provisions? Yes: Q31. A PIN cannot require compliance before 7 days from the date the PIN was issued. Is this time frame appropriate? Yes: Part 5 Protection from Discrimination Q32. Should the model Act expressly protect persons from being coerced or induced to exercise their powers in a particular way? No: the workplace relations Acts and the existing workplace relations structures in place under a variety of awards would be sufficient to deal with matters arising from this area. 8

9 Part 6 Workplace entry by OHS entry permit holders Q33. Are the notification requirements appropriate? Authorised persons must seek permission to enter properties and workplaces, including unions, Industry association relevant to the industry must have the capacity to enter in the same manner as unions, the interpretation of imminent dangers for right of entry must be confirmed in a court of law before or after the event, penalties must apply (40 penalty point) people who entered premises or places of work where entry was to be deemed frivolous or false or misleading. Q34. Should the model Act contain a specific authorisation process for an OHS entry permit or can it rely on authorisation obtained under other Acts such as the Fair Work Act? Yes however not under the Fair Work Act? Authorised persons must seek permission to enter properties and workplaces, including unions, Industry association relevant to the industry must have the capacity to enter in the same manner us unions, the interpretation of imminent dangers for right of entry must be confirmed in a court of law before or after the event, penalties must apply (40 penalty point) who entered premises or places of work where entry was to be deemed frivolous or false or misleading. Q35. Should contraventions of this Part attract criminal or civil sanctions? If civil sanctions are considered appropriate, should penalty levels reflect those that apply under the Fair Work Act? Yes in part; criminal penalties should not be applicable and only to be considered if all parties are in fact compliant with the relevant legislation, the interpretation should be similar to the Crimes Act an illegal (non compliant) entry no case to answer. 9

10 Q36. The right of entry provisions have been drafted to be generally consistent with the Fair Work Act. Do these provisions appropriately apply to the role of a union representative when entering the workplace in relation to OHS, rather than in relation to workplace relations? The new proposed Act does not clearly gives the right to unions the right of entry, neither should the Act give such an undertaking to unions, the interpretation could be made that the unions have an overriding right, to force full entry under both Acts, it would be fallacy of justice for an independent party, such as a union, to be able to enter a workplace by a whim, with no members at this work site or company without any formal training in place by the union representative. Additionally this would clearly be breach of current OH&S legislation in all States. Part 7 The Regulator Q37. Should guidelines have any other particular legal status under the Act? Yes: replace guidelines with compliance. Part 10 Review of Decisions Q38. Is the list of reviewable decisions appropriate? Yes: Q39. Are the processes and timeframes prescribed for the internal review of decisions appropriate? Yes: Q40. Are stay arrangements appropriate in relation to the issue of a prohibition or nondisturbance notices, having regard to the purposes of those notices? Yes: 10

11 Exposure Draft of Key Administrative Regulations Q41. Should the list of matters to be considered in negotiations for work groups be provided for in a Code of Practice rather than prescribed in regulation? Yes: As prescribed in regulation. Do you have any other comments? The overall intent with the new Act is a create initiative by the federal government to achieve uniformity of workplace safety in Australia however there are several issues worth noting: 1. Terminology used is evasive and makes interpretive assumptions in law such as as soon as reasonably practicable or reasonable practicable or reasonable time or reasonable concern. 2. Consistent contradictive references and Jurisdictional Notes It should be clear to legislators that we live in the 21 st century and that the normal expectation of a businessman in our age should be consistent with an IQ level to understand formal basic English, without having to approach legal trained people to interpret an Act for us. A workplace health and safety Act should be written for the people by the people not by the legal profession for the legal profession. The recommendation is that an Authorised Officer such as a union member MUST before entry, produce proof of the following documents and qualifications: Photo ID Card A Site Specific Safety Management Plan (union specific contractor management files) Copies of relevant insurances Copies of relevant training completed Minimum training requirements Certificate IV in workplace safety (in the first 2 years Act commencement) Diploma in OHS or WPS in Australia (after the first 2 years Act commencement) Continued improvement learning points every year 11

12 The most contentious aspect of this legislation is the right of entry within the Act and the suggested alignment with the Fair Work Act 2009 expectation of right of entry. The above listed training requirement and certification are a minimum certification an authorised person must hold before he can enter a workplace in the capacity as an authorised person. Penalties must apply: if an authorised persons seeks to enter properties and workplaces, under the interpretation of imminent danger for right of entry. This right of entry must be confirmed in a court of law before or after the event, penalties must apply (40 penalty point to individuals or unions) who entered premises or places of work where entry was to be deemed frivolous or false after the event. End this Document. 12

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