The Development of Model OHS Regulations and Codes www.worksafe.qld.gov.au Workplace Health and Safety Queensland The Development of Model OHS Regulations and Codes Presented by: Malcolm Burgin Technical Chair SIA (QLD & NT)

National Model OHS Laws Model OHS laws consists of: model Act - ‘Model Work Health and Safety Bill’ model Regulations model codes of practice All jurisdictions must implement the model OHS laws by end-December 2011 Implementation requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible having regard to the drafting protocols in each jurisdiction

June 2008 - Intergovernmental Agreement for OHS Harmonisation Parties commit to: work cooperatively to harmonise OHS regulation through the adoption and implementation of model OHS legislation OHS legislation will remain nationally uniform over time

NSW Reneges on Harmonisation Tuesday 19 October, 2010 The NSW Government will not sign up to the model Work Health and Safety Act unless it allows unions to retain the right to prosecute employers for work safety breaches and that the onus of proof remains on employers to show they exercised due care, according to NSW Premier, Kristina Keneally. NSW released Work Health and Safety Bill 2011 in May11

Structure of the Model OHS Act Scope, objects and definitions Health and safety duties Incident notification Authorisations (registered plant, high risk work, MHFs) Consultation, representation and participation (issue resolution) Discriminatory, coercive and misleading conduct Workplace entry by WHS entry permit holders Functions and powers of the regulator and inspectors Securing compliance (inspectors functions powers) Enforcement measures Enforceable undertakings Review of decisions Legal proceedings

Duties of Care Person conducting a business or undertaking (PCBU) PCBU with management or control of a workplace Upstream parties (design, manufacture, import, supply, install/construct) Officers (exercise due diligence) Workers (reasonable care) Other persons (exercise reasonable care) The model Act provides that persons conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: workers who are engaged, or caused to be engaged, by the person; workers whose activities in carrying out work are influenced or directed by the person; and workers of a class prescribed in the regulations. If the person is self-employed, then that person must ensure, so far as is reasonably practicable, his or her own health and safety while engaged in work for their business or undertaking. A person conducting a business or undertaking also must ensure, so far as is reasonably practicable, that the health and safety of other persons e.g. customers, visitors, is not put at risk from work carried out as part of the conduct of the business or undertaking. The model Act also sets out key elements of those duties e.g. providing and maintaining a safe and healthy work environment. A person at a workplace (other than a person who has another duty) must take reasonable care for own health and safety, take reasonable care that their acts or omissions do not adversely affect the health and safety of other person and co-operate with any reasonable instruction given by the person conducting a business or undertaking. General risk assessment and risk control processes are not specified in the model Act consistent with Recommendation 136, although the intention is for the model regulations to deal with risk management in relation to specific hazards or risks. The risk management process is to be established via regulation, with further guidance provided in a code of practice 16 The principle of risk management A duty imposed on a person to ensure health or safety requires the person: (a) to eliminate hazards and risks to health and safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate hazards and risks to health and safety, to minimise those hazards and risks so far as is reasonably practicable.

A PCBU has a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers at work in the business or undertaking. The PCBU must also ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking [s.19(1-2)]. PCBU A PCBU has a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers at work in the business or undertaking. The PCBU must also ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking [s.19(1-2)].

Primary Duty of Care A person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and (d) the safe use, handling and storage of plant, structures and substances; and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

Risk Management The principle of risk management in the Bill A duty imposed on a person to ensure health or safety requires the person: (a) to eliminate hazards and risks to health and safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate hazards and risks to health and safety, to minimise those hazards and risks so far as is reasonably practicable. General risk assessment and risk control processes are not specified in the model Act consistent with Recommendation 136, although the intention is for the model regulations to deal with risk management in relation to specific hazards or risks. The risk management process is to be established via regulation, with further guidance provided in a code of practice 16 The principle of risk management A duty imposed on a person to ensure health or safety requires the person: (a) to eliminate hazards and risks to health and safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate hazards and risks to health and safety, to minimise those hazards and risks so far as is reasonably practicable.

Reasonably Practicable Means was reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters: likelihood of the hazard or risk degree of harm that might result from the hazard or risk what the person concerned knows or ought to know about the hazard or risk and ways to eliminate or minimise risk availability and suitability of ways to eliminate or minimise risk After assessing the above – the cost associated with ways of eliminating or minimising the risk – whether cost is grossly disproportionate to the risk General risk assessment and risk control processes are not specified in the model Act consistent with Recommendation 136, although the intention is for the model regulations to deal with risk management in relation to specific hazards or risks. The risk management process is to be established via regulation, with further guidance provided in a code of practice 16 The principle of risk management A duty imposed on a person to ensure health or safety requires the person: (a) to eliminate hazards and risks to health and safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate hazards and risks to health and safety, to minimise those hazards and risks so far as is reasonably practicable.

Officers An ‘Officer’ will have the meaning as defined in Section 9 of the Corporations Act 2001 This places the onus of responsibility and accountability on the person who has substantial influence over the corporation, i.e. the Board, Managing Director and maybe others.....

Due Diligence Section 27 of the model WHS Act details the due diligence requirements for Officers. The due diligence requirements include taking reasonable steps to: Acquire and keep up to date knowledge of work, health and safety matters; Gain an understanding of the nature of operations of the business and the hazards and risks associated with those operations; Ensure there are appropriate resources and processes to eliminate or minimise risk to health and safety from work carried out; To ensure there are appropriate processes for receiving information regarding incidents, hazards and risks in a timely manner; To ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty; and To verify the provision and use of the resources and processes listed in paragraphs (c) – (e).

Parts of proposed Work, Health and Safety Bill consistent with Queensland WHS Act Obligations on persons conducting a ‘business or undertaking Definition of worker (although broader than Qld definition achieves the same outcome) Provisional Improvement Notices Union right of entry Enforceable undertakings Inspectors powers generally consistent Discrimination provisions OHS obligations on persons conducting a ‘business or undertaking’ - consistent with the Queensland WHS Act. The new Act has differently phrased but equivalent obligations on specific upstream duty holders (e.g. designers, manufacturers, importers, suppliers of plant and substances and installers/erectors/commissioners of plant). The Bill also places a duty on persons with management or control of a workplace and fixtures, fittings and plant at a workplace. The proposed Bill has a broad definition of ‘worker’, based on the NT definition, which includes employees, volunteers, persons on work experience, labour hire, contractors or subcontractors, outworkers, apprentices and trainees. While it is broader than the Qld definition, it achieves the same outcome, because of the way the Queensland duty provision (business or undertaking) is structured. The Bill contains Provisional Improvement Notice (PIN) provisions that are modelled on the Queensland Act. Union right of entry provisions are based on the Queensland Act, including the procedure for appointing an OHS entry permit holder. The proposed Bill reflects the Queensland enforceable undertakings (EU) provisions. Under the Safe Work Bill, an undertaking will not constitute an admission of fault or liability. Inspectors’ powers are generally consistent with the current Queensland provisions, including the range of notices that can be issued. Discrimination provisions are generally consistent with Queensland provisions however, they are drafted in a way that is easier to understand. The discrimination provisions have a reverse onus of proof in relation to establishing that discrimination was the dominant reason.

Parts not consistent with Queensland WHS Act No reverse onus of proof The onus of proving all elements of the offence, including whether the duty holder has adopted reasonably practicable measures, rests with the regulator What is reasonably practicable in the circumstances will have to be proved by the regulator along with all the other elements of an offence. The ACTU and Qld Government argued for a ‘reverse onus of proof’ but this was rejected. The primary duty of care is qualified by reasonably practicability, rather than it being a defence. This qualification is not used in Queensland as persons conducting a business or undertaking have an absolute duty of care and the ‘reasonably practicable’ qualifier is included as a defence.

Landmark decision to pave the way for future OH&S prosecutions 04 February 2010 A landmark High Court decision will have a significant impact on how regulators approach prosecutions of employers for breaches of occupational health and safety laws (OHS laws) across Australia. In the case of Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales, the High Court has fundamentally changed the interpretation of employer's duties under occupational health and safety laws (at least in those states with absolute duties to ensure safety) and also the way in which prosecutions must be conducted.

Not consistent with Queensland WHS Act (cont) Prosecutions Can be commenced within 2 years of the regulator becoming aware of the offence; or Within 1 year of coronial or official inquiry. The model Act provides that prosecutions for an offence may only be brought by the regulator or an inspector with the written authorisation of the regulator. It also sets out a procedure if a prosecution is not brought (Recommendation 223). The WHS Act allows for a prosecution to be commenced within 1 year of offence being committed or 6 months of coming to knowledge of the regulator or 12 months of coronial inquiry.

Not consistent with Queensland WHS Act (cont) Originally, no specific provisions in the Bill relating to principal contractors as it would be covered by the duty for persons with ‘management or control of a workplace’ The model Act places certain duties on persons with management or control of workplaces, or the means of entering or exiting workplaces, and fixtures, fittings or plant in workplaces, to ensure, so far as is reasonably practicable, that those things are safe and without risks to the health of any person. These duties only apply to the relevant business or undertaking, not to mid-level employees or supervisors. Additionally these duties do not apply to the occupier of domestic premises. Specific duties of care are also owed by the following persons whose businesses or undertakings influence the way work is carried out persons who design, manufacture, import or supply plant, structures and substances, and persons who erect, install or commission plant or structures.

Principal Contractors SIG‐OHS considered and endorsed the construction regulation plan provided by SWA on 29‐30 July 2010. This includes: Definitions consistent with current Qld Act and Regulation (i.e. what is construction work, what is high risk construction work, etc). A Principal Contractor must be appointed when the total construction value is in excess of $200,000. PCBU’s will be required to prepare, review, and enforce Safe Work Method Statements (SWMS) for all high risk construction work. Principal Contractors will be required to prepare, monitor, maintain and keep up‐to‐date during the course of the construction work a construction safety management plan. No set height for work at height provisions

Not consistent with Queensland WHS Act (cont) No Workplace Health and Safety Officers The Workplace Relations Ministers Conference decided against including WHSOs (and an obligation on employers to take OHS advice) in the Bill. Under Part 8 of the Qld Act, an employer (but not other persons conducting a business or undertaking) must appoint a qualified person as a workplace health and safety officer (WHSO) if the employer has, or is likely to have, thirty or more workers at the workplace for a total of any forty days during the year. The Queensland government supported the inclusion of WHSO provisions in the model Act, pointing to the strong support for WHSOs from Queensland stakeholders and research that demonstrated the effectiveness of the arrangements; however WRMC did not support the inclusion of WHSO provisions in the model Act.

Not consistent with Queensland WHS Act (cont) Corporate officers to exercise ‘due diligence’ This obligation is less stringent than the current Queensland provision (i.e must ensure corporation complies with the WHS Act) Executive officers have a duty to exercise ‘due diligence’: to take reasonable steps to proactively and regularly ensure: up-do-date knowledge of OHS laws and compliance requirements; an understanding of the nature of the operations of the entity and generally the hazards and risks associated with those operations; that the entity has available, and uses, appropriate resources and processes to enable the identification and elimination or control of specific OHS hazards and risks associated with the operations of the entity verification of the implementation by the entity of the matters referred to in the third bullet point; and a process of receiving, considering and ensuring a timely response to information regarding incidents, identified hazards and risks.

Not consistent with Queensland WHS Act (cont) Does not cover all volunteer associations s5 volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. The model Act defines a ‘volunteer’ as a person acting on a voluntary basis irrespective of whether the person receives out-of-pocket expenses. The model Act protects volunteers in their capacity as workers, but ensures that volunteers are not discouraged from participating in community-based activities. For example, wholly volunteer associations that have been formed for one or more community purposes are not treated as businesses or undertakings for the purposes of the Act. Furthermore, while officers of organisations and workers who are volunteers have duties of care under the model Act, they cannot be prosecuted for contravening those duties under the Act.

New Features for Queensland Broader definition of worker Includes contractor or subcontractor, as well as Employee of a contractor or subcontractor Employee of labour hire company Outworker Apprentice or trainee Student on work experience Volunteer Workers must take reasonable care for their own health and safety and that of other persons and must cooperate with any reasonable instruction given by the person conducting the business or undertaking to comply with the Act Broad definition of worker, including employees, volunteers, persons on work experience, labour hire, contractors or subcontractors, outworkers, apprentices and trainees. A person at a workplace (other than a person who has another duty) must take reasonable care for own health and safety, take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons and co-operate with any reasonable instruction given by the person conducting a business or undertaking Model legislation will ensure that all types of workers are protected from workplace health and safety risks, because the duties of care will extend beyond the employer/employee relationships that currently exist in most OHS laws. The model Act will also facilitate effective participation of workers and the representation of their interests in OHS.

New Features for Queensland Broader duties for workers (and others) Places an obligation on workers (and others) to exercise ‘reasonable care’ that their acts or omissions do not adversely affect the health and safety of other persons Workers must take reasonable care for their own health and safety and that of other persons and must cooperate with any reasonable instruction given by the person conducting the business or undertaking to comply with the Act Broad definition of worker, including employees, volunteers, persons on work experience, labour hire, contractors or subcontractors, outworkers, apprentices and trainees. A person at a workplace (other than a person who has another duty) must take reasonable care for own health and safety, take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons and co-operate with any reasonable instruction given by the person conducting a business or undertaking Model legislation will ensure that all types of workers are protected from workplace health and safety risks, because the duties of care will extend beyond the employer/employee relationships that currently exist in most OHS laws. The model Act will also facilitate effective participation of workers and the representation of their interests in OHS.

New Features for Queensland Allows workers to cease work if exposed to serious risk Codifies existing common law rights. Workers must notify management and can be redeployed to other suitable duties. Under the model Act, a worker may cease work without loss of entitlements if he or she believes on reasonable grounds that to continue work would expose him or her to a serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard (Recommendation 121).

New Features for Queensland HSRs can direct workers to cease work After consultation and attempt to resolve the issue. No need to consult if there is immediate or imminent hazard A health and safety representative who has undertaken approved training may direct a worker in their work group to cease work if they believe, on reasonable grounds, that to continue work would expose the worker to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard. 76 Power of health and safety representative to direct that unsafe work cease (1) This section applies if a health and safety representative has reasonable grounds to believe that there exists a serious risk to the health or safety of a worker in the work group that he or she represents, emanating from an immediate or imminent exposure to a hazard. (2) The health and safety representative: (a) must consult with the person or undertaking for whom the workers are carrying out work about the issue; and (b) must attempt to resolve the issue; and (c) if the issue is not resolved, may give a direction to cease work. (3) The health and safety representative may direct the worker to cease work if the representative has consulted with the person conducting the business or undertaking for the worker and has attempted to resolve the issue. (4) The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the issue if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction. (5) The health and safety representative must carry out the consultation as soon as possible after giving a direction under subsection (4). (6) A health and safety representative may not exercise a power under this section unless the representative has undertaken the training referred to in section 65 HSRs also have power to: Inspect workplaces Accompany inspectors Represent members in interviews with management Receive information Request establishment of health and safety committee Monitor OHS measures Investigate complaints Issue provisional improvement notices Direct workers to cease work

Workplace Health and Safety Act 1995 Current Qld Penalties Current maximum penalties for OHS offences in Queensland Workplace Health and Safety Act 1995 Individual Imprisonment Corporation Multiple deaths $200,000 3 years $1,000,000 Offences causing death or grievous bodily harm $100,000 2 years $500,000 Exposure to a substance likely to cause death or grievous bodily harm $75,000 1 year $375,000 Offences causing bodily harm Other offences $50,000 6 months $250,000

New Features for Queensland 3 categories of offences – Category 1: recklessly exposes a person to risk of death or serious injury or illness = $3 million corporations; $600,000 individuals; 5 years imprisonment Category 2: serious risk of harm without recklessness = $1.5 million corporations; $300,000 individuals Category 3: fails to comply with OHS duty = $0.5 million corporations; $100,000 individuals The model Act applies three categories of penalties for a failure to comply with a duty of care, depending on the degree of seriousness or culpability involved. The intention is for these offences to be ‘absolute liability’ offences (Recommendation 52). However, the offences themselves are generally qualified e.g. by reasonable practicability, due diligence or reasonable care. WRMC also agreed to Recommendations 200 and 201 which set out penalties related to breaches against an inspector and to Recommendation 129, setting out that offences for ‘proscribed conduct‘ (discrimination, victimisation, coercion, etc) should be Category 3 offences.

New Features for Queensland The most serious offences will be treated as criminal matters dealt with in mainstream courts.

New Features for Queensland Issue resolution requires health and safety issues to be resolved in accordance with an agreed procedure, or using the procedure to outlined in the legislation provides that a representative of a party to an issue may enter the workplace for the purpose of resolving the issue. unresolved OHS issues can be referred to the regulator Bill provides for an default issue resolution procedure where a dispute or concern about OHS remains unresolved after consultation between the affected worker(s) and the PCBU. Parties are encouraged to develop their own issue resolution procedure.

Model OHS Regulations The Strategic Issues Group – Occupational Health and Safety (SIG-OHS) has considered policy proposals for all matters to be considered for inclusion in the model regulations.  The model regulations compare favorably with current Queensland regulations in most areas. The model regulations were available for public comment in December 2010 and closed in April 2011.  Still ongoing debate about the details.

Status of Model Codes of Practice SIG has agreed to develop, along with the regulations 5 priority codes: Asbestos (management and control) Risk management Preparation of safety data sheets Labelling of workplace substances Consultation The following codes identified as potential priority if regulations are not specific: Work environment and amenities Manual tasks Noise Confined spaces Demolition Excavation Precast tilt-up Construction work at heights Plant

More Information www.worksafe.qld.gov.au www.safeworkaustralia.gov.au Workplace Health and Safety Infoline 1300 369 915 Malcolm Burgin (Managing Director) OccSafe Australia 0412997314