NSW Government take first steps down the path of
OHS reform
Monday, 23 May 2011
In a pre-election commitment the then Opposition Leader Mr Barry O’Farrell indicated that an elected Liberal Government would support the adoption of the Harmonised Model Work Health & Safety Legislation.
On 5 May 2011, the New South Wales Government took the first step towards harmonisation by introducing the Occupation Health & Safety Amendment Bill 2011 (Amendment Bill).
The Amendment Bill proposed three key amendments to the current Occupation Health & Safety Act 2000 (OHS Act).
Qualification of Health & Safety Duties – Removal of the Reverse Onus of Proof
The current health and safety duties under the OHS Act are strict liability duties with defences under Section 28 of the OHS Act, including a “reasonably practicable” defence.
This reverse onus of proof has been the subject of much criticism over the years, with the defences in Section 28 of the OHS Act considered to be unworkable (this view was supported by the High Court in Kirk).
The Amendment Bill proposes to include a reasonably practicable qualifier (Section 7A of the OHS Act), which removes the reverse of onus of proof and brings it into line with all other jurisdictions except for Queensland.
The relevant factors to be considered in establishing what is reasonably practicable in relation to ensuring the health and safety of a person are set out in section 7A.
As a consequence of the inclusion of section 7A, section 28 will be removed.
Replacement of the current Section 26 deeming provision for directors and managers
The current section 26 of the OHS Act is what is known as a deeming provision and applies to directors and persons concerned in the management of a corporation. Where a corporation is found to have contravened the OHS Act, the individual director or manager is taken to have contravened the same provision of the Act, unless the individual can show that he or she used all due diligence to prevent the corporation, or was not in a position to influence the corporation in relation to the contravention.
The Amendment Bill replaces the current section 26 with a new proactive duty that requires officers (as defined under section 9 of the Corporations Act 2009 (Cth)) to exercise due diligence. The provision is the same as the proposed section 27 in the Model legislation.
This is an important amendment as this provision imposes upon relevant employees the requirement to verify at any time that the person was exercising due diligence, not just when trying to establish a defence after being prosecuted after an incident has occurred.
Deputy State Premier Andrew Stoner highlighted the fact that the elements of the proactive duty as set out in the new section 26 are not an exhaustive list but merely a legislative guide to assist individuals in developing effective due diligence frameworks. It is important in complying with this provision that consideration is given to the nature of the business and the existing safety systems in place at a relevant business when developing and implementing a due diligence framework.
An important exemption applies to an officer who is a volunteer. The definition of volunteer is that contained in the Civil Liability Act 2002 (NSW), that is a person who does community work on a volunteer basis.
The removal of the Union right to prosecute
The Amendment Bill abolishes the entitlement for a Secretary of a union to institute proceedings.
Unlike the other two major amendments, which will operate from the date of the Bill’s assent, the abolition of the union right to prosecute takes effect from 5 May 2011, the date the Bill was introduced to parliament.
The removal of the union right to prosecute in NSW means that the ACT remains the only jurisdiction with such a right.
Model Work Health & Safety Bill
At the same time as the amendments to the OHS Act were introduced to Parliament, the O’Farrell Government also introduced the Work Health & Safety Bill 2011.
An interesting provision relates to the removal of prosecutions from the NSW Industrial Court to the Local and District Courts.
Offences under the new legislation will in future be instituted in the District Court in its summary jurisdiction with category 1 offences (those where a business is found to have acted recklessly) will be heard as indictable offences before the District Court.
This certainly was not anticipated and prompted criticism from the President of the NSW Relations Commission, about the lack of consultation on this important change.
Debate on the Amendment Bill was adjourned on 11 May 2011. We will keep you up to date on any further information about the passage of the Amendment Bill.
For further information please contact:
For information on our Workplace Relations & Safety Group click here. |
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