New OHS BillsOn 5 May 2011, the new Coalition NSW Government introduced into Parliament the Work Health and Safety Bill 2011 (WHS Bill) and the Occupational Health and Safety Amendment Bill 2011 (OHS Bill). The WHS Bill signals the new NSW Government's commitment to the harmonisation of OHS laws in Australia, by enacting the Federal Government's proposed national Model Work Health and Safety Bill. If passed, the Bill will ensure harmonised OHS laws are fully implemented by 1 January 2012. The OHS Bill will introduce more immediate changes to the current Occupational Health & Safety Act 2000 (OHS Act) before 1 January 2012. Key changes include: 1. Modifying the duties on employers - The current OHS Act requires employers to "ensure" the health, safety and welfare of employees and others affected by their operations.
- This duty has traditionally been interpreted as an absolute duty, with employers having the burden of proving a defence.
- Once enacted, the OHS Bill will amend the duty so that it becomes a duty to ensure "so far as is reasonably practicable" the health, safety and welfare of their employees and others affected by their operations.
- The modified duty will mean employer liability will only extend to those preventative measures which are "reasonably practicable" in the circumstances.
- This mirrors the duty as it is expressed in the Model Work Health and Safety Bill.
2. Legal Changes - The Bill proposes to remove the absolute duty on employers, with the consequence that the current "reverse onus of proof" will no longer apply.
- The NSW Industrial Court would no longer hear safety prosecutions, as these laws once made will transfer the jurisdiction to the criminal divisions of the NSW District and Local Court, or the Supreme Court for indictable offences.
- This transfer will mean that future OHS prosecutions are to be governed by criminal procedures under the general law.
3. Modifying the duties of officers- The current OHS Act provides that directors and persons concerned in the management of a corporation are deemed to be liable for the same offences committed by the corporation unless it can be established that they had no influence over the corporation in respect of the contravention or they used all due diligence to prevent the contravention.
- When enacted, the OHS Bill will remove the deemed liability of directors.
- Instead, company officers will be required to exercise due diligence to ensure their corporation is complying with the OHS Act by:
- acquiring up-to-date workplace safety information;
- understanding the safety hazards and risks associated with the corporation; and
- ensuring the corporation has sufficient resources, processes and mechanisms in place to eliminate or control safety risks.
4. Unions will no longer be allowed to prosecute breaches of Occupational Health and Safety laws in NSW- Only WorkCover inspectors will be entitled to commence proceedings.
- Unions will no longer be able to initiate prosecutions from the date that the OHS Bill was introduced into Parliament (ie. 5 May 2011). Prosecutions initiated by unions prior to 5 May 2011 will be able to continue.
Increased PenaltiesDespite a relaxation of certain obligations imposed on employers and individuals (as outlined above) the enactment of the proposed WHS Bill will push fines up to $3 million for corporations and $600,000 or imprisonment for individuals. What does this mean for employers?- The OHS landscape in NSW is set to undergo significant changes.
- OHS laws in NSW will be brought into line with existing standards in other State jurisdictions and prepares NSW laws to be aligned with the Model Work Health and Safety Bill.
- Once the legislation commences, there will no longer be an absolute duty on employers to ensure the health and safety of employees and employers will be assessed in accordance with a duty to ensure health and safety as far as is "reasonably practicable" in the circumstances.
- Employers should familiarise themselves with the new "reasonable practicability" factors which will be used to determine whether the employer had taken adequate steps to either eliminate or minimise risk.
- The removal of the reverse onus of proof will ensure that WorkCover will need to establish a case and prove liability against employers. This should see the end of what could be described as some of the more "zealous" prosecutions undertaken by WorkCover, such as the case highlighted by the High Court decision of Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 last year.
For expert advice on these impending changes or any other OH&S issues you may have please contact one of our Partners at FCB Workplace Law in Sydney on (02) 9922 5188 or Melbourne on (03) 9098 9400. |
