Australia: O’Farrell Government takes first steps to historic occupational health and safety legislation changes

On the morning of 5 May 2011, Deputy Premier Andrew Stoner introduced the Work Health and Safety Bill 2011 and the Occupational Health and Safety Amendment Bill 2011 into the NSW Legislative Assembly. The introduction of the amendments to health and safety legislation in NSW in the first sitting week of the NSW Parliament under the O'Farrell Government demonstrates the new Government's commitment to NSW joining in the harmonisation of the model work health and safety legislation.

Current Occupational Health and Safety Act Changes

In the introduction of these bills, the O'Farrell Government has moved to make three critical amendments to the current Occupational Health and Safety Act 2000 (NSW) on issues that have been at the heart of stakeholder debate in OHS matters in NSW before the model Work Health and Safety legislation is due to commence in January 2012, thus bringing current OHS legislation in NSW into line with the majority of jurisdictions on key issues.

Those changes are:

• Removing the reverse onus of proof - The general duties to ensure health, safety and welfare under the current legislation will be qualified by the use of the qualification of 'so far as is reasonably practicable'. This will apply to all general duties in the current legislation (employer, self-employer, controller of premises, designers, manufacturers and suppliers duties). The definition of reasonably practicable under the model Work Health and Safety Bill has also been incorporated into the changes to the current Act in order to give guidance to duty holders. This means that Queensland is currently the only remaining jurisdiction with the reverse onus of proof in operation.

  The Bill inserts the qualification into the general duties and deleted the defence currently in section 28 of the OHS Act. The deletion of the defence means that a number of obligations other than the duty of care provisions will be absolute obligations. This includes the consultation duty and incident notification.

• Replacing the current deeming provision for officers' liability – The current OHS legislation will now include the proactive duty for officers to exercise due diligence rather than the previous position in NSW of deeming officers liable for the contraventions of their corporation.

  A definition of due diligence will be included in the current OHS legislation. This definition matches the definition of due diligence under the Model Work Health and Safety legislation. During the Agreement in Principle Speech for the Bill, Deputy State Premier Stoner stressed that the elements of due diligence provided in the definition was not an exhaustive list of what was required but will assist duty holder to understand what due diligence means and assist Courts with their interpretation of the duty.

  As with the model work health and safety legislation, the definition of officer for the purpose of this provision is taken from the Corporations Act 2001 (Cth).

• The removal of the union right to prosecute – As of 5 May 2011, the date of introduction of the bill, the union right to prosecute is removed from the current OHS legislation in NSW. During the Agreement in Principle Speech for the Bill, Deputy State Premier Stoner stated that this will not have an effect on enforcement and cited the contrast of numbers of prosecutions by employee associations (50) and WorkCover NSW (693 successful prosecutions in the 4 years to 2010).

  The removal of the union right to prosecute operates from today but the other amendments will operate from the date of the Bill's assent.

Introduction of the Model Work Health and Safety legislation

The Work Health and Safety Bill 2011 was also introduced at this time. This Bill represents the NSW Government introducing the national harmonisation model work health and safety legislation which is due to be enacted in all jurisdictions nationally by 1 January 2012. This makes NSW the second jurisdiction to introduce the legislation1.

The NSW legislation is consistent with the model legislation on the approach to the primary duty of a person conducting a business or undertaking to ensure health and safety, the proactive duty of officers to exercise due diligence and the increasing of maximum penalties. The Work Health and Safety Bill 2011 also provides further options for approaches to enforcement than those currently in operation in NSW such as the ability for duty holders to enter into work health and safety enforceable undertakings with WorkCover NSW in relation to a contravention or alleged contravention of the legislation, an option which has previously been unavailable in NSW.

All other offences under the Work Health and Safety Bill 2011 will be dealt with summarily before the Local Court or the District Court in its summary jurisdiction.

Debate on the Bills resumes in the NSW Parliament tomorrow. We will continue to keep you abreast of these developments.

Footnote

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