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

2. 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

3. 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

4. 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

5. 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

6. 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.

7. 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)].

8. 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.

9. 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.

10. 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.

11. 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.....

12. 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).

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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).

25. 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

26. 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

27. 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.

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

29. 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.

30. 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.

31. 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

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