1. National Safety Summit Getting the Dynamics Right 27 August 2009 Stephanie Mayman C, Western Australian Industrial Relations Commission

2. What this session will cover harmonisation to date; harmonisation to date; why harmonisation; why harmonisation; objects of the process; objects of the process; several issues arising from the reports; and several issues arising from the reports; and questions questions

3. Harmonisation Aims   nationally consistent laws (modern & updated)   in developing consistent OSH laws there should be no reduction or compromise in standards for legislative health and safety controls;   consultative approach ensuring input from stakeholders; and   harmonised legislation to be accompanied by standard regulatory approaches

4. What is harmonisation? harmonious all one, concordant, cosmic, harmonic, homonymous, homophonic, homophonous, in accord, one, symphonious, true, unanimous, unisonant, unisonous; congenial acceptable, to someone's taste, unobjectionable, up one's street; fitting appropriate, becoming, befitting, condign, congruous, decent, due, felicitous, fit, meet perfect, proper, ready-made, right, suitable, harmonious all one, concordant, cosmic, harmonic, homonymous, homophonic, homophonous, in accord, one, symphonious, true, unanimous, unisonant, unisonous; congenial acceptable, to someone's taste, unobjectionable, up one's street; fitting appropriate, becoming, befitting, condign, congruous, decent, due, felicitous, fit, meet perfect, proper, ready-made, right, suitable, adverb 7 accord chime, concur, consort, correspond, dovetail, go with, harmonise, key in, live up to, match, sympathise, tone (in) with; fit assort, comport with, consist with, get along (or on), get on (or along), go with, interlock, intermesh, match, mate, mesh, satisfy, suit; adverb 7 accord chime, concur, consort, correspond, dovetail, go with, harmonise, key in, live up to, match, sympathise, tone (in) with; fit assort, comport with, consist with, get along (or on), get on (or along), go with, interlock, intermesh, match, mate, mesh, satisfy, suit; Bibliography: The Macquarie Encyclopaedic Thesaurus Online, August 2009

5. Harmonisation to Date Harmonisation of OHS laws commenced with: Productivity Report ‘04 recommendations; Productivity Report ‘04 recommendations; ‘uniform national ohs laws in all jurisdictions’; ‘uniform national ohs laws in all jurisdictions’; ‘agreement by all jurisdictions to adopt without variation national ohs laws and regulations’; ‘agreement by all jurisdictions to adopt without variation national ohs laws and regulations’; became Directive of Council of Australian Governments (COAG) - 2006; became Directive of Council of Australian Governments (COAG) - 2006; election promise of current Government; and election promise of current Government; and 2008 Review Panel established … 2008 Review Panel established …

6. Harmonisation - the panel process Panel appointed in April 2008 to conduct review; Panel appointed in April 2008 to conduct review; 242 submissions were made and wide consultation with stakeholders; 242 submissions were made and wide consultation with stakeholders; final report delivered 30 January 2009; final report delivered 30 January 2009; WRMC released report 13 February 2009; and WRMC released report 13 February 2009; and Drafting of harmonised laws underway … Drafting of harmonised laws underway …

7. Harmonisation - the drafting process the Panel’s reports may not provide the final wording on the model Act but provide a series of recommendations from which draft laws are being produced; the Panel’s reports may not provide the final wording on the model Act but provide a series of recommendations from which draft laws are being produced; many have asked what further opportunity, if any, will there be for public consultation on the draft Bill; many have asked what further opportunity, if any, will there be for public consultation on the draft Bill; the answer to that is as directed by Safe Work; the answer to that is as directed by Safe Work; however the panel’s task has concluded; and however the panel’s task has concluded; and the drafting is in the hands of Safe Work Australia who will report to the WRMC … the drafting is in the hands of Safe Work Australia who will report to the WRMC …

8. Who oversees the process? The new OHS laws will be overseen by: Safe Work Australia; Safe Work Australia; input by the stakeholders; input by the stakeholders; Workplace Relations Ministers’ Council; Workplace Relations Ministers’ Council; IGA framework; and IGA framework; and Council of Australian Governments (COAG); Council of Australian Governments (COAG); The process ahead will ultimately determine the outcome of harmonised OHS laws in Australia.

9. Proposed Timeline 1st September 2009 (draft proposal to WRMC); 1st September 2009 (draft proposal to WRMC); 11th September 2009 - WRMC to consider draft proposal); 11th September 2009 - WRMC to consider draft proposal); thereafter 6 weeks public comment; and thereafter 6 weeks public comment; and further consideration by WRMC further consideration by WRMC in December 2009

10. Commencement Date Nationally harmonised OHS laws and associated regulations to commence by December 2011

11. The Panel’s Reports 2008/2009 list of recommendations; list of recommendations; the body of the reports the body of the reports to avoid false impressions do not rely on specific recommendations or issues in isolation. to avoid false impressions do not rely on specific recommendations or issues in isolation. The recommendations are inter-related and inter-dependant The recommendations are inter-related and inter-dependant

12. Focus on Several of the Report’s Recommendations reasonably practicable; reasonably practicable; worker; worker; officers; officers; discrimination, victimisation and coercion; discrimination, victimisation and coercion; OHS representatives; OHS representatives; issue/dispute resolution; and issue/dispute resolution; and penalties penalties

13. Reasonably practicable ‘reasonably practicable’ to qualify most duties of care (other than for officers, workers and others at the workplace); ‘reasonably practicable’ to qualify most duties of care (other than for officers, workers and others at the workplace); ‘reasonably practicable’ to be defined in the Model OHS Act; and ‘reasonably practicable’ to be defined in the Model OHS Act; and The definition will, in part: The definition will, in part: refer to what can reasonably be done; refer to what can reasonably be done; refer to ‘weighing up’ relevant matters; refer to ‘weighing up’ relevant matters; clarify reference to hazard, potential harm and risk; and clarify reference to hazard, potential harm and risk; and clarify relevance of cost (misunderstood in the past) clarify relevance of cost (misunderstood in the past) the definition will not specify or define the issue of control the definition will not specify or define the issue of control

14. Workers and others Workers Workers broad definition of worker – anyone performing work in a business or undertaking; broad definition of worker – anyone performing work in a business or undertaking; duty to take reasonable care for themselves and others; and duty to take reasonable care for themselves and others; and duty to co-operate with the person conducting the business or undertaking regarding OHS duty to co-operate with the person conducting the business or undertaking regarding OHS Other persons at the workplace (new) Other persons at the workplace (new) similar duty to workers similar duty to workers visitors, public and those authorised to enter the workplace visitors, public and those authorised to enter the workplace

15. Other obligations Person conducting business or undertaking is required to: Person conducting business or undertaking is required to: employ or engage qualified person, Workplace Health and Safety Officer, to advise, where person conducting business or undertaking ordinarily has more than 30 employees; employ or engage qualified person, Workplace Health and Safety Officer, to advise, where person conducting business or undertaking ordinarily has more than 30 employees; monitor workplace and health of workers; and monitor workplace and health of workers; and notify incidents (responsibility of person conducting the business or undertaking) notify incidents (responsibility of person conducting the business or undertaking)

16. C onsultation Heath and Safety Representatives: Heath and Safety Representatives: powers and entitlements include right to direct others to cease work; powers and entitlements include right to direct others to cease work; right to issue provisional improvement notices (PIN’s); right to issue provisional improvement notices (PIN’s); PIN’s subject to review by inspector; and PIN’s subject to review by inspector; and work groups may include more than one business or undertaking. work groups may include more than one business or undertaking.

17. Issue/Dispute Resolution ‘issue’ defined as any matter remaining unresolved after consultation at workplace; this triggers the procedure ‘issue’ defined as any matter remaining unresolved after consultation at workplace; this triggers the procedure consultation process determined by workplace participants or, in the absence of such agreement, by default procedure in model Act; consultation process determined by workplace participants or, in the absence of such agreement, by default procedure in model Act; relevant union(s) may be involved in process; and relevant union(s) may be involved in process; and issues subject to review by relevant court or tribunal issues subject to review by relevant court or tribunal

18. discrimination, victimisation and coercion prohibited; discrimination, victimisation and coercion prohibited; includes protection and remedies for all persons who have been exercising a role under the model Act; includes protection and remedies for all persons who have been exercising a role under the model Act; 2 avenues to proceed against person alleged to have carried out proscribed conduct - criminal and/or civil; 2 avenues to proceed against person alleged to have carried out proscribed conduct - criminal and/or civil; person alleged to be in breach bears the onus of proving that the reason alleged was not the dominant (criminal courts) or operative (civil courts) reason for the conduct; person alleged to be in breach bears the onus of proving that the reason alleged was not the dominant (criminal courts) or operative (civil courts) reason for the conduct; reasonable precautions defence; reasonable precautions defence; coercion offence subject to ‘reasonable excuse’; and coercion offence subject to ‘reasonable excuse’; and unions to have standing to represent a claimant unions to have standing to represent a claimant Discrimination, victimisation and coercion

19. Unions Authorised representatives of unions to have right of entry: Authorised representatives of unions to have right of entry: immediately for investigating suspected breach; immediately for investigating suspected breach; 24 hours notice for advice or consultation; 24 hours notice for advice or consultation; 24 hours notice for request for documents; and 24 hours notice for request for documents; and subject to right of entry permit and member eligibility requirements, protections and accountability (consistent with Fair Work Act 2009 (Cth) or relevant State legislation) subject to right of entry permit and member eligibility requirements, protections and accountability (consistent with Fair Work Act 2009 (Cth) or relevant State legislation)

20. … unions no power to prosecute under model laws; no power to prosecute under model laws; unions may, as others currently in some jurisdictions, seek a review (by DPP) of a decision by the regulator not to prosecute or alternatively, by an inspector not to issue a notice; and unions may, as others currently in some jurisdictions, seek a review (by DPP) of a decision by the regulator not to prosecute or alternatively, by an inspector not to issue a notice; and unions may become involved in issue resolution process, at the request of worker unions may become involved in issue resolution process, at the request of worker

21. The regulator, the inspector In addition to their enforcement role inspectors to : provide information and advice; provide information and advice; accept enforceable undertakings as an alternative to prosecution; accept enforceable undertakings as an alternative to prosecution; assist in resolving issues at the workplace; assist in resolving issues at the workplace; co-operate cross-jurisdictionally in terms of authority of inspectors and admissibility of evidence; and co-operate cross-jurisdictionally in terms of authority of inspectors and admissibility of evidence; and retain current powers, protections and accountability – including being subject to review/appeal of decisions. retain current powers, protections and accountability – including being subject to review/appeal of decisions.

22. Penalties Category 1 Category 2 Category 3 Categories based on degree of ‘culpability’ and risk/degree of harm Corporations: $3,000,000 Officers: $600,000 / 5 years jail Workers: $300,000 / 5 years jail Corporations: $1,500,000 Officers: $300,000 Workers: $150,000 Corporations: $500,000 Officers: $100,000 Workers: $50,000

23. What should you be doing now? Business, regulators, employees, OHS specialists and unions should prepare for any future changes, first assessing their current position in relation to existing OSH laws: the key objective in developing a model Act is to harmonise OSH laws in Australia; the key objective in developing a model Act is to harmonise OSH laws in Australia; consider and prepare for the changes from the primary duty of care and definitions (particularly the breadth of ‘worker’); consider and prepare for the changes from the primary duty of care and definitions (particularly the breadth of ‘worker’); ‘the undertaking’ what does it mean to the workplaces you attend/work at; ‘the undertaking’ what does it mean to the workplaces you attend/work at; prepare for the changes to consultation, right of entry, OHS representatives and committee provisions; and prepare for the changes to consultation, right of entry, OHS representatives and committee provisions; and dispute resolution of OHS issues (what will this entail?) dispute resolution of OHS issues (what will this entail?) officers should ensure that corporate governance frameworks and processes meet the new duty of care of an officer. officers should ensure that corporate governance frameworks and processes meet the new duty of care of an officer.

24. Potential difficulties issue of industry coverage and the move that occurred away from OHS laws to industry specific e.g. transport and mines issue of industry coverage and the move that occurred away from OHS laws to industry specific e.g. transport and mines (final decisions include portfolios in addition to coverage by Workplace Relations Ministers’ Council); fear that provisions will be lost if they are transposed into regulations; and fear that provisions will be lost if they are transposed into regulations; and the passage of the laws through individual Parliaments. the passage of the laws through individual Parliaments.

25. Harmonisation provides an opportunity To lead to an improved system which provides: a change in culture; a change in culture; a change in the law that reflects a rapidly changing work environment; a change in the law that reflects a rapidly changing work environment; laws that are flexible; and laws that are flexible; and laws that will last. laws that will last.