National OHS Review: Second Report Released

Michael Tooma and Alena Titterton write:

The much anticipated Final Report of the Panel on the National Review into Model Occupational Health and Safety Laws was released yesterday after Thursday night’s teleconference between the members of the Workplace Relations Ministers Council.

The Report deals with the consultation requirements, risk management, incident notification, role of the regulator, qualifications and training of inspectors, privilege against self-incrimination, union right of entry, union right to prosecute and the role of codes of practice.

The Report’s recommendations on the whole reflect the prevalent existing position on these issues and is largely uneventful in that regard. The most welcomed recommendation was the decision not to allow union the power to prosecute – a right which exists only in New South Wales. It is the position which the report takes to the issue of personal liability and right of entry which are the most controversial.

Union Power to prosecute

In a devastating blow to unions and a welcomed move for employers the report recommends that unions not be given the power to prosecute for an OHS offence – a power they have currently in New South Wales and for which they have argued in their submissions and public comments since the start of the review.

Although available for many years, the union power to prosecute had seldom been used until recently when a series of prosecutions in the finance industry by the Finance Sector Union against a spate of large banks in relation to armed hold-ups, and prosecutions by the Public Sector Officers against the Department of Community Services in relation to a violent attack by a customer [1] and a prosecution against the Department of Education and Training for a violent attack by a student [2] brought the power into the spotlight.

Due diligence

In what appears to be a significant deviation from its earlier position, the Panel has recommended strengthening the personal liability provisions putting an unambiguous positive obligation on officers to implement a due diligence framework in their company.

Officers will be required to take reasonable steps proactively and regularly to ensure:

  • up-to-date knowledge of OHS laws and compliance requirements;
  • an understanding of the nature of the operations of the company;
  • an understanding of the hazards and risks associated with the company’s operations;
  • that the company has appropriate resources for controlling the hazards and risks involved in the operations;
  • verification of company compliance; and
  • a process for receiving considering and ensuring timely responses to information regarding incidents, identified hazards and risks.

Due diligence is a term used in New South Wales, Queensland and Tasmania as a defence to the personal liability provisions.

Having adopted the less onerous “Victorian” style approach to personal liability, most people expected the compliance burden of officers to be lessened or no more onerous in all but Western Australia. The duty appeared to be the same as the duty in Victoria, Northern Territory, South Australia and upon the commencement of the new Act, the ACT. The duty appeared to significantly water down the standard in New South Wales, Queensland and Tasmania. Only officers operating in Western Australia would have seen an increase in their duty. However, the Final Report has in effect defined the key terms to reflect more closely the NSW approach than the Victorian one. The standard of personal liability applied is in effect the New South Wales approach to the standard in all but onus.[3]

The position adopted by the Final Report is a significant lifting of the standard of directors and officers in all jurisdictions other than New South Wales, Queensland and Tasmania. Even in those jurisdictions, the standard is no less onerous than the existing standard in that a director who meets this standard would currently have a defence under the NSW, Queensland and Tasmanian laws – the only difference is that the onus of proving the breach will now be with the prosecution.

Union Right of Entry

The Report adopts an expansive approach to the right of entry of unions on OHS matters permitting unions to enter premises to investigate safety breaches, inspect documents and records with 24 hours written notice and to consult on OHS matters. This reflects the approach in Victoria, Queensland, the Northern Territory and Western Australia but represents an increase in union powers in other jurisdictions.

The Panel took the view that union right of entry contributes in a positive manner to OHS compliance at a workplace level. It recommended that the model Act provide right of entry for OHS purposes to union officials and/or union employees formally authorised for that purpose under the model Act.

The model Act would give union’s the capacity to:

  • investigate a suspected contravention of the model Act or regulations;
  • consult workers on OHS issues; and
  • provide advice to workers, and consult with the person in management or control of a business or undertaking or relevant workplace on OHS issues.

Currently, right of entry provisions throughout Australian States and Territories can be summarised as follows:

State/Territory OHS Law

Is there a right of entry to consult employees?

Is there a right of entry to investigate suspected breaches of the legislation?

Occupational Health and Safety Act 2000 (NSW)

No

Yes (section 77)

Occupational Health and Safety Act 1989 (ACT)

No

Yes (section 77)

Work Safety Act 2008 (ACT) (not yet commenced)

No

Yes (section 63)

Workplace Health and Safety Act 2007 (NT)

Yes (section 53 (3)(a) and (4)(b))

Yes (section 53 (3)(b))

Workplace Health and Safety Act 1995 (QLD)

Yes (section 90J)

Yes (section 90I (1)(c))

Workplace Health and Safety Act 1995 (TAS)

No

No

Occupational Health and Safety Act 2004 (VIC)

Yes (section 89 (1)(c))

Yes (section 87 (1)(a) – (c))

Occupational Safety and Health Act 1984 (WA) but right of entry provisions in relation to OHS are found under the Industrial Relations Act 1979 (WA)

Yes (section 49H)

Yes (section 49I)

Occupational Health, Safety and Welfare Act 1986 (SA)

No

No

The significant expansion of union powers for consultation with workers on OHS matters is unwarranted as the OHS legislation currently provides for elected health and safety representatives to represent employee interests and the Report recommends a continuation of that approach. Effective unions will usually secure a delegate in that role giving that delegate wide powers including the power to investigate OHS complaints and issue provisional improvement notices or direct that work cease. If the union does not have sufficient support in the workplace to secure such a position, why should it be conferred a special status and given special rights of entry, investigation and consultation?

The recommended provisions allow unions to investigate suspected breaches of occupational health and safety legislation. However, the Panel’s recommended approach limits prosecutorial powers to regulators and in some circumstances, the Director of Public Prosecutions. It is not clear what the purpose is of conferring on unions a right to investigate suspected breaches given that they cannot initiate a prosecution as a result of their findings.

While the right of entry provisions in relation to the power to consult workers will be subject to 24 hours written notice, the provisions in relation to investigating suspected breaches of OHS legislation have no such notice provision limitation. Unions wishing to enter premises for any reason are likely to do so under the auspices of suspected breaches of OHS legislation.

These recommendations have the potential to industrialise the safety agenda. While the Panel has acknowledged that the issue of potentially blurring the OHS and industrial relations environments was an issue a number of stakeholders (particularly employers) had warned them against [4], the wide scope of the union powers which would be available under the recommended model both continue and extend the special status of unions as entrenched in OHS legislation.

Definition of control

The Panel has recommended that the model Act not define control. The Panel concedes that control is a matter which has been inconsistently interpreted by the Courts, but has formed the view that it is too difficult to provide a definition that is “sufficiently clear and applicable to all circumstances” [5] without narrowing the scope of control.

As the Report points out, control is used in many crucial contexts in the current OHS legislation including in determining: who will owe the duty of care, where a person is the duty holder, the subject matter of the duty of care, the extent of the duty of care owed to contractors, in relation to what concurrent duty holders owe a duty and whether or not a defence applies.

In light of its crucial nature, the business community is likely to see the lack of definition of control as disappointing. Employers have overwhelmingly called for clarity on the extent of their duties in complex arrangements. The difficulty with leaving control undefined is that without clarity as to what control means, duty holders are likely to assume that they do not have control.

Further, without legislative guidance, the inconsistent application of the meaning of control by the Courts is likely to continue.

The Report reflects an opportunity missed to provide a clear definition of control to delineate the scope of the duties and provide greater clarity to employers embarking on the task of applying the law to day to day situations.

Powers of HSRs

The Report recommends giving health and safety representatives the power to issue provisional improvement notices (PINs) where they have reasonable grounds to believe there is a contravention of the legislation. The Report also recommends that HSRs have the power to direct work to cease where the issue involves an immediate threat to health and safety of any person.

The power to issue PINs will be new to HSRs operating in New South Wales or Tasmania (and are only to be available in Queensland shortly). The terminology used for notices issued by HSRs in South Australia and the Northern Territory will be streamlined.

This increase in compliance powers for HSRs in certain jurisdictions further undermines the argument for the necessity for union entrenchment in OHS legislation.

Consultation

Currently, New South Wales, Victoria, Northern Territory and the ACT OHS legislation provide a separate duty for OHS consultation. In Western Australia, the employers’ duty also requires consultation with employees regarding OHS at the workplace. The model Act proposed by the Report would include a duty for a person conducting a business or undertaking to consult with workers about matters affecting health and safety.

The Report refers to the concern expressed by employers to the review panel that the triggers for consultation in current legislative provisions are too broad. The Report recommends triggers for consultation as the following activities:

  • identifying hazards and assessing risks from work performed;
  • making decisions about ways to eliminate or control those risks;
  • the adequacy of workers facilities;
  • proposing changes that may directly affect the health and safety of workers;
  • making decisions regarding procedures for resolving OHS issues, consultation mechanisms, monitoring health of workers and conditions in the workplace; and
  • the provision of information and training for workers.

The above list reflects the broad approach adopted under current OHS legislation but qualifies the duty with the use of as far as “reasonably necessary” to distinguish it from “reasonably practicable”.

Risk Management

The approach to risk management adopted in the Report is to reject the approach in Queensland and the Northern Territory where risk management is required as part of the primary duty of care.

Most stakeholders from across the community – employers, unions and academics alike, were of the view that the model Act should be explicit in the required risk management principles.

The Report recommends not requiring a process of hazard identification and risk assessment or mandating a hierarchy of controls in the model Act but allow the regulation making power to establish those processes in the regulations with further guidance provided in a code of practice.

The Report also takes the view that hazard and risk do not need to be defined in the model Act on the basis that these terms are now well understood. It leaves open the possibility that they may be defined in the regulations to support the risk management provisions.

Incident Notification

Incident notification in certain circumstances is required in all Australia States and Territories, however there is a great deal of diversity in reporting requirements across the jurisdictions.

The Report recommends that the person conducting the business or undertaking have the responsibility to notify the regulator immediately where there is fatality, serious injury, serious illness or a dangerous incident which arises out of the conduct of the business or undertaking.

The definitions for each of these categories of incidents suggested by the report are a combination of specified injuries and the threshold of medical intervention. The Report proffers the example of amputation and treatment at hospital requiring admission to illustrate the combination. The ‘dangerous incident’ definition is to capture events that could have caused fatality, serious illness or injury or suggest he existence of a serious risk to health or safety.

Qualifications, training and role of inspectors

Qualifications and training under the model Act are to be nationally consistent.

Inspectors will provide advice and information to duty holders, assist in issues resolution at workplaces, review PINs, issue notices, give directions, investigate suspected breaches and assist prosecutions.

Inspectors will be able to issue safety directions, infringement notices, improvement notices, prohibition notices and directions for non-disturbances of sites.

The role of the regulator

The Report recommends that a regulator be able to seek an injunction where there is an ongoing breach of a prohibition notice or to compel compliance with an improvement notice after the time period has expired. The regulator will also be able to take remedial action where there is an immediate and serious risk to health and safety and there has been a failure to comply with proper and reasonable directions by the person conducting the business or undertaking.

The Report also recommends the continuation of the dual role of regulator as enforcer and educator, stating that regulators have a role in promoting and supporting education, training and information for duty holders, workers and the community. The model Act will include an authorisation for the regulator to make guidelines.

Prosecution

The Final Report recommends that between 6 and 12 months after the event concerned in the breach, a person may request in writing that a regulator bring a prosecution for a breach and if no prosecution is brought, have the decision of the prosecutor reviewed by the DPP. It appears that the report has modelled these recommendations on the review process set out in the Victorian legislation.

This differs from the current approach in South Australia, where an employee who has suffered injury as a result of an act or omission which is alleged to be an offence under the OHS legislation and proceedings have no been commenced within a year, the employee is able to commence proceedings under the legislation.

The Report provides no explanation for why it has recommended that the model Act provide for a process whereby a decision by a regulator not to prosecute (in relation to a category 1 or 2 offence) may be reviewed by the DPP, but there is no right of review recommended for the decision to prosecute.

On the face of the Report it is unclear if there are any limitations on who will have a right to request the review by the DPP. It appears that it may be any person who considers that a particular action or inaction constitutes a serious breach of a duty of care under the model Act. This could mean both parties and non-parties may request a review of the decision not to prosecute. It is likely that the provisions would provide an avenue for redress where relevant co-defendants had not been prosecuted, thus exposing the full relative culpability of all the relevant parties avoiding scenarios such as Gretley where 52 charges were laid by the prosecutor against two corporate defendants and eight personal defendants but not against the Department of Mines or the employer of the miners who died, United Mining Support Services (a company partly owned by the CFMEU) who were both involved in the events leading to the mine disaster.

Privilege against self-incrimination

The privilege against self-incrimination will not apply to questions asked by an inspector for the purposes of enforcing ongoing compliance and securing health and safety. However, the privilege against self-incrimination would be available to a natural person in response to a request for information or questions asked for the purposes of investigating a breach of the model Act or regulations. Corporations do not have the right to such privilege and would be required to answer requests through authorised officers.

Nothing in the model Act is to affect the availability of legal professional privilege and such privilege would be available to both natural persons and corporations.

Codes of Practice

Codes of Practice are to be developed under a tripartite process with expert involvement. Courts are to take codes of practice as representative of what is known about specific hazards, risks and risk controls. Codes will be used to assist the Court determine what was reasonably practicable in the circumstances. However, under the model Act, duty holders will be able to demonstrate compliance through ways other than those set out in the approved code of practice which would be a deviation from the current position in New South Wales and the ACT.

Concluding Remarks

Overall, employers will be pleased with the recommendations of the Report. The focus of attention should now turn to ensuring that the model legislation reflects the recommendations and ensuring the smooth implementation of the commitment made to harmonisation under the COAG Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety.

This will not be an easy task. The Report’s findings came down overwhelmingly against unions on the key issues they have pursued, in particular, the duty of care, personal liability provisions and the power of the unions to prosecute. In the circumstances, the union movement can be expected to vigorously oppose the implementation of the recommendations of the Report. We eagerly await the reaction of State and Territory ministers.

The National OHS Review Second Report can be found here

[1] Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201

[2] Barry Johnson v State of New South Wales (Department of Education and Training) [2006] NSWIRComm 275.

[3] Onus of proof of due diligence under the recommended model falls on the prosecution and not the defendant as it is in NSW, Queensland and Tasmania.

[4] Report, page 312.

[5] Report, page 48.


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