National OHS Harmonisation

National Review into Model OHS Laws

• Stage 1 - duties of care (identification of duty holders and scope and limits of duty) and the nature and structure of offences and defences. This report was released in October 2008.
  
  
• Stage 2 - workplace-based consultation, participation, representation provisions, enforcement and compliance, regulation making powers, permits and licensing arrangements (for high risk workers), role of OHS Regulatory agencies and other matters. This report was released in February 2009.

The Workplace Relations Ministers’ Council agreed on 18 May 2009 (see WRMC Communiqué) to the recommendations of the review. SafeWork Australia has commenced drafting the new Act.

On 29 September 2009, SafeWork Australia released a Model OHS Act for public comment.

On 11 December 2009, the Workplace Relations Ministers' Council endorsed the model Work Health and Safety Act. The model Act endorsed by Ministers was submitted by SafeWork Australia and incorporated a number of amendments proposed as a result of consideration by Safe Work Australia, input from the Parliamentary Counsel's Committee and public comment. The model Act can be downloaded here.

SafeWork Australia have now commenced work on the Work Health and Safety Regulations, Codes and Guidelines. This is expected to be completed by June 2011 for introduction, along with the Act on 1 January 2012. Further details can be found here.

NSWMC Position

MODEL OHS ACT

• Fairness

• Honesty

• Effectiveness
  
  
• Consistency
  
  
• Objectivity

NSWMC welcomes the inclusion of the following elements in the Model Act:

• No obligation of absolute liability
  
  
• No reverse onus of proof
  
  
• Providing persons subject to criminal prosecutions with the following fundamental legal rights: a right to silence, right to appeal and upholding the principle of double jeopardy
  
  
• Unions are not able to commence prosecutions

However, NSWMC believes the following issues must be addressed by Safe Work Australia to ensure a world class health and safety legislative tool for Australia:

• To ensure that the Model Act is effective, compliance with the Act must be achievable - definition of critical terms is required to assist in achieving compliance
  
  
• To achieve single national OHS laws, there must be no place for jurisdictional notes
• Every person at a workplace is personally responsible for the safety and health of themselves and others - there is no reason why employers and employees should be treated differently
  
  
• Health and safety representative powers should not be used to industrialise a workplace, and deflect from the true intent of the Model Act – improved health and safety
  
  
• A clear picture for all stakeholders about the full scope of enforcement is required
  
  
• The Model Act must provide clear objectives to protect the safety and health of employers, employees and contractors and provide a lighthouse for stakeholders, particularly the courts in interpreting and enforcing the legislation

NSWMC advocates for a single national OHS Act covering all industry sectors supported by nationally uniform regulations and national codes of practice and guidelines for industry specific issues. For the mining industry, in particular, the harmonisation process provides a further opportunity to ensure the mining specific OHS legislation is also harmonized supported by mining specific guidelines and codes. That is why NSWMC fully supports the work of the National Mine Safety Framework. NSWMC strongly believes that a national framework for the mining industry will greatly promote health and safety.

NSWMC believes the harmonisation of OHS laws will achieve better safety outcomes for workers and reduce the burden of compliance on corporations and individuals, especially corporations with operations that span multiple jurisdictions.

These draft laws have gone a long way to securing this future and NSWMC encourages Safe Work Australia to ensure this Model Act is neither industrialised or subject to state prerogative.

NATIONAL REVIEW PANEL SUBMISSION

The NSW Minerals Council (NSWMC) made a submission to the National Review Panel in July 2008. NSWMC firmly believes that national harmonisation of health and safety laws are crucial in order to achieve better safety outcomes. A single OHS Act will also reduce the burden of compliance on corporations and individuals, especially corporations spanning more than one state or territory. The model OHS Act is an opportunity to establish best practice workplace health and safety legislation throughout Australia.

NSWMC believes that the proposed harmonisation of OHS legislation is a step in the right direction. While we recognise that the process of harmonising different jurisdictions is a difficult one, it is a critical process for the long term economic viability of all industries in Australia and should receive the highest priority from the Federal Government.

It is also important to recognise that there is other reform work currently taking place that can be complementary to the OHS harmonisation process. NSWMC and its member companies have been participating in the review of mining safety legislation through the National Mine Safety Framework (NMSF). The important work being undertaken by the National Review should not adversely impact on the progress and achievements of the NMSF. NSWMC advocates for a single OHS act and a single mining specific OHS legislation. NSWMC eagerly awaits the Draft Exposure Bill and Business Impact Statement in late 2009.