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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
OCCUPATIONAL
HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (EMPLOYEE INVOLVEMENT AND
COMPLIANCE) BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for
Employment and
Workplace Relations, the Honourable Tony Abbott
MP)
OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (EMPLOYEE INVOLVEMENT AND COMPLIANCE) BILL 2002
The Occupational Health and Safety (Commonwealth Employment) Amendment
(Employee Involvement and Compliance) Bill 2002 amends the Occupational
Health and Safety (Commonwealth Employment) Act 1991 (the Act) to provide
improved protection of the health and safety of Commonwealth employees at work
by:
§ Revising the provisions relating to the
employer’s duty of care to provide a greater focus on occupational health
and safety outcomes, including by removing unnecessary prescription in the
Act:
o There is no change to the
employer’s primary duty to take all reasonably practicable steps to
protect the health and safety at work of the employer’s
employees;
o Prescriptive
provisions requiring an employer to develop an occupational health and safety
policy and agreement are being replaced with a requirement for the employer to
develop safety management arrangements in consultation with the employer’s
employees. When developing or varying safety management arrangements, employers
will be required to have regard to any advice of the Safety, Rehabilitation and
Compensation Commission (the Commission) on the
matter;
§ Recognising the primacy of direct employer
and employee relationships, by facilitating genuine consultations between
employers and employees through a more direct relationship, in part by removing
mandatory third party intervention. This will ensure that employers and
employees are free to develop suitable health and safety arrangements which take
account of the circumstances of their own enterprise and therefore accommodate
their needs at the enterprise
level:
o To support the
objective of greater consultation, the current institutional mechanisms through
which employees have input into health and safety arrangements –
designated workgroups, health and safety representatives and health and safety
committees – are retained:
§ No change is being made to the functions
and powers of health and safety representatives (however a technical amendment
proposed will give health and safety representatives the power to request an
investigation of an alleged contravention of the Act where a provisional
improvement notice has been issued but not complied with);
§ Employers
will be required to establish health and safety committees if they normally
employ not less than 50 employees. An employer will also be required to
establish a committee where there is normally not less than 50 employees at a
workplace and either a health and safety representative gives or a majority of
employees in the workplace make a written request to an employer to establish a
committee. The manner in which such committees are to be constituted and
operate will be required to be covered in the employers’ safety management
arrangements; and
§ The number of employer representatives on
a health and safety committee will not be able to be greater than the number of
employee representatives.
o An
employee will be able to be represented by a registered organisation (including
an organisation within the meaning of the Workplace Relations Act 1996)
or an association of employees of which he or she is a member, if it has a
principal purpose of protecting and promoting employees’ interests in
matters concerning their employment, if the employee requests such
representation;
§ Ensuring that the additional flexibility
given to employers to develop appropriate arrangements at the workplace level is
balanced by a strong, effective and responsive enforcement regime
by:
o Encouraging voluntary
compliance;
o Providing for
civil penalties as far as possible, reserving criminal penalties for more
serious breaches of the Act where there has been a death or serious bodily harm.
Criminal penalties are also being retained for offences which are more
appropriately dealt with in the criminal justice system, such as contempt of the
Commission or failing to attend before the Commission as a
witness;
o Providing for a wider
range of remedies under the Act to ensure more effective protection of the
health and safety of Commonwealth employees at work,
namely:
§ Injunctions, both prohibitory and
mandatory, to achieve compliance with the Act;
§ Remedial orders to enable effective action
to be taken to remedy the effect of a breach of the Act;
and
§ Enforceable undertakings. Comcare is
being given the power to accept a written undertaking relating to the fulfilment
of an obligation under the Act from a person who is required to fulfil that
obligation. This will be available as an alternative to prosecution and thereby
encourage voluntary compliance with the requirements of the Act;
o Substantially increasing
levels of penalties. For example, currently the maximum penalty under the Act
is $100,000 for a breach of the employer’s duty of care. This is being
increased to 2,200 penalty units ($242,000) for a civil breach and 4,500 penalty
units ($495,000) for a criminal breach;
§ Revising the annual reporting requirements
of Commonwealth agencies under the Act to provide a greater focus on outcomes
rather than process; and
§ Making technical amendments to various
provisions of the Act to correct deficiencies or otherwise improve the operation
of these provisions, for
example:
o Giving health and
safety representatives the power to request an investigation of an alleged
contravention of the Act where a provisional improvement notice has been issued
but not complied with;
o Giving
investigators the power to give oral directions that a workplace not be
disturbed in order to remove an immediate threat to health and safety or to
allow an inspection at the workplace. This power is in addition to the current
power to give a written notice not to disturb a
workplace;
o Enabling
investigators to amend or cancel do-not-disturb, prohibition and improvement
notices issued by
them;
o Enabling Comcare to
exercise some powers currently conferred on the Commission, such as providing
occupational health and safety advice to Departments and Commonwealth
authorities and referring employers, employees and contractors to experts.
FINANCIAL IMPACT STATEMENT
The proposals contained in the Bill
are budget neutral.
Occupational Health and Safety (Commonwealth Employment) Act
1991
The Occupational Health and Safety (Commonwealth Employment) Act
1991 (the OHS(CE) Act) provides a legal basis for the protection of the
health and safety of Commonwealth employees in Departments, Statutory
Authorities and Government Business Enterprises (GBEs). The OHS(CE) Act imposes
responsibilities on employers, employees and others (including private
businesses which are manufacturers, suppliers and installers of plant, equipment
and substances used by Commonwealth employees).
The Commonwealth has
adopted an approach to the protection of the health and safety of employees
which is more effectively self-regulating at the enterprise level. This
includes prescribing general duties of care for employers, workers and others
and the establishment of arrangements at workplaces which involve employees in
the development and implementation of health and safety arrangements. A similar
approach is taken in all Australian jurisdictions and in most comparable
jurisdictions internationally.
Comcare undertakes the role of regulator
under the OHS(CE)Act. This role includes investigations of incidents. A
Planned Investigation Program is also conducted by Comcare each year, usually
focussing on an agency’s policies and practices. Comcare also provides a
range of information and education assistance to Commonwealth employers and
employees. A range of sanctions is available where an investigation reveals a
breach of a duty under the Act, including the issuing of Improvement and
Prohibition Notices. In the case of Government Business Enterprises, a criminal
prosecution may be brought.
The OHS(CE) Act is supported by regulations
addressing specific areas of health and safety risk and providing guidance to
employers in meeting their duty of care under the Act. Further guidance and
assistance is provided through non-binding Codes of Practice on specific
issues.
This Regulation Impact Statement concerns proposals for
amendments to the OHS(CE) Act in relation to the duty of care placed upon
employers to do whatever is reasonably practicable to protect the health and
safety of employees (and third parties) in the workplace and the penalties
available in the event of breaches of the Act. The changes to the
employer’s duty of care are closely related to proposed changes to the
workplace arrangements provisions of the OHS(CE) Act. The amendments to the
employer’s duty of care and penalties provisions therefore form part of a
package of amendments to the OHS(CE) Act which will ensure that Commonwealth
employers and employees can fully co-operate in the development of arrangements
which address issues at the particular workplace and that they will be supported
by a responsive and effective enforcement regime. This will result in improved
health and safety outcomes.
The OHS(CE) Act, in conjunction with the Safety, Rehabilitation and
Compensation Act 1988 (the SRC Act) seeks to limit the human and financial
cost of injury and illness in the workplace. There have been improvements in the
Commonwealth’s occupational health and safety performance since the
OHS(CE) Act commenced. This could be attributed to a number of factors,
including changes in the composition of the workforce. Commonwealth employers
are also generally aware of their obligations under the OHS(CE) Act and willing
to comply with them.
Nonetheless there are problems with the current
provisions that limit the Act’s effectiveness in achieving continuous
improvement in health and safety outcomes:
§ Current provisions of the OHS(CE) Act
outlining the employer’s duty of care in relation to their employees are
oriented towards process rather than outcomes and restrict the flexibility of
employers to design safety management arrangements, in direct consultation with
all their employees, which take account of the circumstances of their own
organisation;
§ The central place of unions in the current
formulation of the OHS(CE) Act is inconsistent with the need to involve all
employees in consultations on health and safety issues at the workplace. In
essence, it is only possible for employers and employees to engage in direct
consultation on health and safety in the workplace where there is no
“involved union”; and
§ There have only been 8 successful
prosecutions under the OHS(CE) Act since its commencement and there have been
considerable time lags between incident and conviction (between 3 and 4 years in
some cases).
Prescriptive processes for duties associated with the
development of health and safety policies and agreements
The
employer’s duty of care in relation to their employees is set out in s.16
of the OHS(CE) Act. Subsection 16(1) sets out the primary duty on the employer
to take all reasonably practicable steps to protect the health and safety at
work of the employer’s employees. The remaining subsections in s.16 set
out more detailed requirements for fulfilling this duty.
More
prescriptive requirements are laid down in paragraph 16(2)(d) and subsection
16(3). Paragraph 16(2)(d) requires an employer to develop, in consultation with
any involved unions, an occupational health and safety policy. Subsection 16(3)
provides that the occupational health and safety policy must provide for the
making of an agreement between the employer and involved unions that provides
appropriate mechanisms for continuing consultation on OHS matters and any other
agreed matters.
These duties are the same for all employers, regardless
of size, though they are often more appropriate for larger, more strongly
unionised workforces. Effective protection of workplace health and safety
requires input from the employees to policies and processes. However, it is
this Government’s view that this is best achieved through arrangements
which are designed to suit the requirements of the specific
enterprise.
Furthermore, it is only possible for employers and employees
to engage in direct consultation on health and safety in the workplace where
there is no “involved union”. An involved union is defined to
mean:
(a) in relation to an employee of an employer – a registered
union of which the employee is a member, being an employee who is qualified to
be such a member by virtue of the work the employee performs as an employee of
the employer; or
(b) in relation to a designated work group – a
registered union of which an employee included in the group is a member, being
an employee who is qualified to be such a member by virtue of the work the
employee performs as an employee included in the group.
This is
inconsistent with the principles enshrined in the Workplace Relations Act
1996 ( the WR Act) whereby employees and employers are given more
flexibility in reaching mutually rewarding objectives with minimal third party
intervention.
The current means of enforcing compliance with the OHS(CE) Act is limited
to a regime of criminal penalties and lacks the flexibility required to deal
with the full range of potential breaches of the Act. The delay and difficulty
in obtaining convictions for breaches of the OHS(CE) Act may be attributed in
part to the fact that the criminal standard of proof is required for a
prosecution to succeed. The level of penalties currently available under the
OHS(CE) Act is the second lowest of any Australian jurisdiction.
The government’s primary objective is to secure the health and
safety at work of employees of the Commonwealth, Commonwealth authorities
(including Government Business Enterprises).
In this context, the
government is seeking to achieve a balanced regulatory framework which focuses
on health and safety outcomes and minimises the level of prescription of safety
management arrangements in the workplace. To balance the move to a more
flexible approach to the employer’s duty of care, the government proposes
to provide for a more effective compliance regime.
Options available for regulating OHS in the Commonwealth jurisdiction
include:
a) no change to current provisions, i.e. continued legislative
prescription of detailed employer duties, prescribed role for unions in
consultative processes, inflexible provisions for enforcement of
compliance;
b) streamlining the legislated prescription of employer
duties, particularly to provide more flexibility for agencies to develop their
own safety management arrangements suitable to the requirements of the
particular enterprise balanced by a requirement for employers to have regard to
advice issued by the Safety, Rehabilitation and Compensation Commission (the
Commission) as to the scope of safety management arrangements (i.e. what matters
agencies are required to deal with in the arrangements) and by a more effective
compliance regime, with an emphasis on civil penalties, including non-financial
measures, but with existing penalty levels significantly
increased.;
c) elimination of legislated prescription of employer duties,
with reliance on employer education and workplace inspection by the regulator
(Comcare) and also reliance on the common law duty to provide competent staff,
safe plant and equipment, a safe system of work, and effective instruction,
training and supervision of employees.
The analysis which follows focuses on the impact of regulatory options on
major stakeholders: GBEs, employees and the Government. There will also be an
impact on unions, which currently have a legislated role in consultative
processes under the OHS(CE) Act, which is inconsistent with the provisions of
the WR Act. Under Options b) and c), this prescribed role would be eliminated
though, in accordance with freedom of association principles, employees would
have the option of being represented by unions in consultations.
There
may be less specific impacts than those identified below, when consideration is
given to potential effects on society as a whole (for example, possible
increased pressure on hospital resources due to injury of workers under an
unregulated regime) or on other Australian jurisdictions (through possible
pressure for change along lines parallel to those proposed by the Commonwealth).
These potential effects have not been considered in detail in view of the lack
of specifically identifiable impacts in these areas and the relatively clear
judgement that can be made on the basis of the impacts on major
stakeholders.
The primary duty on the employer to take all reasonably practicable steps
to protect the health and safety at work of the employer’s employees would
be retained under this option.
i) continued requirement to comply with detailed prescription of employer duties (compliance costs as reflected in OHS contributions for the whole jurisdiction were $5 million for 2000/01. Only a proportion of this amount would be attributable to GBEs;
ii) limited costs associated with the development of OHS policies and the
negotiation and renegotiation of OHS agreements;
iii) restriction on
flexibility to design safety management arrangements to suit the
enterprise;
iv) continued adversarial approach to safety management due to
management of safety issues within an industrial relations context.
i) no requirement for revision of current processes;
ii) continued
very low risk of successful prosecution for breaches.
i) lack of direct input to development of safety management arrangements,
except where there is no “involved union” in the
workplace;
ii) continued adversarial approach to safety management due to
management of safety issues within an industrial relations context.
i) automatic representation by unions in negotiations over safety
management arrangements;
ii) generally satisfactory history of protection of
employee health and safety under current provisions, with progressive reduction
of rate of claims per 100 employees since implementation of the OHS(CE) Act
(although this could be due to a range of factors, including changes in the
composition of the Commonwealth public sector workforce).
i) continuing need to resolve questions regarding alleged non-compliance
with detailed prescription of duties, resulting from complaints lodged by unions
or health and safety representatives;
ii) difficulties in achieving quick and
successful prosecutions, especially in respect of relatively minor
breaches.
i) no requirement for resources to be allocated to change
program;
ii) familiarity with current arrangements.
Option
b) Balanced reduction in prescription of employer duties
The primary
duty on the employer to take all reasonably practicable steps to protect the
health and safety at work of the employer’s employees would be retained
under this option.
This option would involve a reduction in the level of
detailed prescription of the employer’s duty of care under the OHS(CE) Act
with respect to the development of health and safety policies and agreements.
Instead, employers would be required to develop safety management arrangements
in consultation with employees and their representatives. The reduction in
prescriptive legislative requirements would be balanced by new provisions giving
guidance to employers as to what issues safety management arrangements might
address and requiring employers to have regard to advice from the Commission as
to the matters which should be included in the safety management
arrangements.
While employers would not be compelled to comply with
advice from the Commission in relation to safety management arrangements, they
may find themselves in breach of their fundamental duty of care to their
employees if they choose to ignore the Commission’s advice and develop
safety management arrangements which do not meet their fundamental duty of care.
The development of appropriate safety management arrangements will require
employers to identify and assess the risks at their particular workplace and
develop strategies to control them. Employers will have to have regard to such
matters as the nature and type of work undertaken in their enterprise and the
level of skills which employees need to perform their tasks safely. Under this
option, therefore, employers will be required to focus on achieving effective
health and safety outcomes, not just follow prescribed processes. Restrictions
on the ability of employers to involve all their employees in consultations on
the development of safety management arrangements will be removed.
A more
effective compliance regime would also be introduced through the encouragement
of voluntary compliance but with new and effective measures to punish wrongdoers
where this becomes necessary. Voluntary compliance with the OHS(CE) Act would
be assisted through the insertion of new Objects in the Act encouraging
employers, employees and others to comply with their obligations under the Act
and indicating that effective remedies are available if such obligations are not
met. New powers would also be created for the regulator to take action before
employees are injured or killed via new remedies such as enforceable
undertakings, injunctions and remedial orders. Where punishment becomes
necessary, this would be achieved through the introduction of civil penalties as
far as possible, with criminal prosecution reserved for the most serious cases.
Penalty levels would also be significantly increased. The new penalty provisions
would make it easier for proceedings to be brought against wrongdoers and ensure
that appropriate penalties are imposed.. This approach is therefore focused on
prevention rather than punishment, through implementing new measures to improve
compliance (in particular the proposed enforceable undertakings) with punishment
only as a last resort.
i) requirement to allocate resources to develop safety management
arrangements suited to the enterprise if the employer elects to vary the current
policy and OHS agreement;
ii) increased risk of successful prosecution for
breaches;
iii) potential for significantly higher penalty and loss of
business reputation in the event of successful prosecution.
i) reduction in compliance burden associated with detailed prescription
of duties;
ii) greater incentive to comply with the employer’s duty of
care through new provisions encouraging compliance;
iii) reduced injury
rates;
iv) reduced costs of workplace injuries;
v) lower workers’
compensation insurance costs;
vi) opportunity for input through the
Commission to development of advice regarding the matters that should be covered
by safety management arrangements;
vii) greater flexibility to design
arrangements adapted to the structure and needs of the particular business and
workplace;
viii) less adversarial approach to development of
arrangements;
i) loss of automatic representation by unions in negotiation of OHS
agreements.
i) removal of current restrictions on the ability of all employees to
directly participate in resolution of health and safety issues at the workplace
in consultations with employers and as a health and safety representative or as
a member of a health and safety committee;
ii) freedom of choice as to
whether to participate directly or be represented by unions in consultations
with employers on safety management arrangements;
iii) possibility of safer
workplaces through:
a) access to more flexibility for employers to design
safety management arrangements suited to the enterprise;
b) new remedies such
as enforceable undertakings and injunctions which enable the regulator to take
action before accidents occur;
iv) greater possibility of successful prosecution of employers for breaches
affecting employees.
i) allocation of resources for development of new regulatory framework,
training costs and guidance material for stakeholders – probable cost of
human resource allocation in the vicinity of $50,000;
ii) additional
resource requirements for expected increase in frequency of prosecutions –
additional costs estimated at $200,000.
i) greater capacity to enforce compliance with legislative provisions
through more flexible penalty regime;
ii) demonstrated commitment to
improving safety in the workplace through enforcement of
compliance;
iii) continuing downward trend in injuries.
i) reduced certainty of extent of obligations regarding employee
safety;
ii) possible increase in experience-based workers’ compensation
premiums or self-insurance costs due to increased level of workplace injury
– health and safety management programs would probably be seen as a
business cost and subject to reduction under competitive
pressure;
iii) reduction in improvements in health and safety outcomes which
can be achieved through an integrated prevention/compensation/ rehabilitation
regime.
i) elimination of requirement for compliance with detailed prescription
of duties;
ii) freedom for management to make judgement on health and safety
risks in the business context.
i) high probability of reduced level of safety in the
workplace;
ii) expense and delays of common law action for negligence in the
event of injury to employee.
i) none readily identifiable.
i) perception of reduced Commonwealth Government commitment to safety in
the workplace;
ii) additional resource requirements for expanded inspectorate
and educational effort necessary to ensure reasonable levels of workplace
safety;
iii) impact on workers’ compensation scheme viability due to
increased level of workplace injury.
i) none readily identifiable.
Consultation on the possible need for change to OHS(CE) Act provisions
has taken place in two stages. First, with union stakeholders, licensed
authorities and Commonwealth departments and authorities in mid-September 1999;
and subsequently at the SRCC meeting on 30 September 1999.
In the
unions’ view, any additional flexibility should be accompanied by adequate
protection, and they did not support significant reduction of the current level
of prescription. They generally welcomed suggestions to increase the level of
penalties.
Licensed authorities took the view that introduction of a
requirement for a minimum scope of safety management arrangements would increase
the level of prescription in the OHS(CE) Act, though there is no indication in
the proposals for change that this would be the case. They were conscious of
the need to update the level of penalties and raised no significant objections
to the suggestions in this area.
Commonwealth departments and authorities
welcomed proposals to reduce the level of prescription and introduce flexibility
to develop arrangements suited to individual organisations. The overall
sentiment was in favour of proposals in respect of the employers’ duty of
care.
The Commission, which is a tripartite body representing employers,
employees and the regulator, agreed that a balanced program of change, along the
lines of Option b) described above, would be desirable.
Option a) would maintain a level of prescription in the
OHS(CE) Act which requires review in the context of the more commercial
environment in which GBEs are now operating. While there are benefits to
employees under current arrangements, those arrangements are overly
prescriptive, expensive to regulate and encourage an unnecessarily adversarial
industrial environment.
Option b) provides a more flexible
approach to employers’ duties. The expectation is that it would lead to
safer workplaces through the availability of more freedom to design safety
management arrangements which are specific to the needs of the individual
enterprise. This flexibility would be balanced by a more effective compliance
regime.
On 7 December 2000, the Government introduced the Occupational
Health and Safety (Commonwealth Employment) Amendment Bill 2000 (the OHS(CE)A
Bill) which proposed amendments to the employer’s duty of care and
penalties provisions in the OHS(CE) Act reflecting the approach adopted in
option (b). The OHS(CE)A Bill was considered by the Senate Employment,
Workplace Relations, Small Business and Education Legislation Committee in 2001.
In its submission to the Committee, the ACTU opposed the proposed removal of the
current mandatory role for unions in the OHS(CE) Act. In the report of the
Senate Committee dated May 2001, Opposition Senators also expressed concerns
about the proposed removal of the mandatory role for unions. The amendments to
the penalty provisions were generally supported. The OHS(CE)A Bill lapsed when
Parliament was prorogued prior to the 2001 election.
Option c)
would provide no identifiable benefit to either the employee or the
regulator, and the costs to employers might well outweigh the potential
benefits. Deregulation would send an undesirable message about the
Government’s commitment to maintaining safe and healthy workplaces for
Commonwealth employees.
Option b) is the preferred option. On the
assumption that GBEs will take advantage of the available flexibility, it is
expected that the changed arrangements will contribute materially to achievement
of the Government’s objectives described above. Concerns expressed by the
ACTU and Opposition Senators about the OHS(CE)A Bill have been taken into
account in developing the Occupational Health and Safety (Commonwealth
Employment) Amendment (Employee Involvement and Compliance) Bill 2002. This
Bill therefore now contains further safeguards to protect the rights of
employees and ensure that they can be represented by unions if they wish.
ii) agreement and promulgation by the Commission of advice regarding the scope of safety management arrangements
The effectiveness of the proposed new provisions will be reviewed annually in
the context of the Comparative Performance Monitoring system agreed by the
Workplace Relations Ministers’ Council. This provides for analysis of
outcome-focused measures of prevention performance to be collected and compared
across all Australian jurisdictions. It will not involve collection of data
additional to that which is already required by the system.
NOTES ON CLAUSES
Clause 1 – Short
title
1. The Bill, when passed, will be known as the Occupational
Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and
Compliance) Act 2002.
Clause 2 –
Commencement
2. Clause 2 specifies when the various provisions of the
Act are proposed to commence. Sections 1 to 3 and anything in the Act not
elsewhere covered by the table in this clause will commence on the day on which
the Act receives the Royal Assent. The amendments in Schedule 1 of the Bill
will commence on the 28th day after the day on which it receives the
Royal Assent. Subclause 2(2) is a technical provision which provides that any
additional information included in Column 3 of the table will not form part of
the Act.
Clause 3 – Schedule(s)
3. This clause
provides that an Act that is specified in a Schedule is amended or repealed as
set out in that Schedule. Other items (eg transitional provisions) have effect
according to their terms.
PART 1 – AMENDMENTS
Item 1 – At the end of section 3
1.1. This item adds new
elements to the existing principal object of the Act, to emphasise the
Act’s focus on voluntary compliance, together with its provision of
effective remedies, through civil remedies and, in serious cases, criminal
sanctions.
Item 2 – Subsection 5(1) (definition of annual report of the
Commission)
1.2 This item replaces an obsolete reference to the
Safety, Rehabilitation and Compensation Act 1988 with an updated
reference.
Item 3 – Subsection 5(1)
1.3 This
item inserts a new term, association, into subsection 5(1). An
association is defined as an association of employees, a principal purpose
of which is the protection and promotion of the employees’ interests in
matters concerning their employment. The term association is used as part of the
definition of the new term employee representative in subsection 5(1).
(See notes on item 8, below).
Item 4 – Subsection 5(2)
(definition of Comcare)
Item 5 – Subsection 5(1)
(definition of Commission)
Item 6 – Subsection 5(1)
(definition of Commission)
1.4 These items replace obsolete
references to the Safety, Rehabilitation and Compensation Act 1988 and
the Safety, Rehabilitation and Compensation Commission, with updated
references.
Item 7 – Subsection 5(1) (definition of
contractor)
1.5 The current definition of ‘contractor’ is limited to natural
persons. This item repeals and substitutes the definition, with the effect that
a ‘contractor’, for the purposes of section 14 of the Act, will
include an incorporated body, in addition to a natural person.
1.6 Section 14 of the Act relates to workplaces that are controlled by
contractors for construction or maintenance purposes and provides for the Act to
apply to such workplaces in a different and limited way, subject to any relevant
regulations. This amendment will make that section more effective, by enabling
it to apply to situations where a workplace is controlled by a contractor which
is an incorporated body.
Item 8 – Subsection 5(1)
1.7 This item inserts the definition of a new term, employee
representative, into subsection 5(1). An employee representative is defined
as a registered organisation of employees, or an association, of which the
employee is a member. The Act currently provides a number of roles for
“involved unions”, including, for example, roles in the development
of occupational health and safety policies pursuant to the current paragraph
16(2)(d) and involvement in respect of the election of health and safety
representatives and the establishment and operation of health and safety
committees. The term, employee representative, will replace current
references in the Act to an involved union. (See notes on items 11 and 12,
below.)
Item 9 – Subsection 5(1) (subparagraph (a)(i) of the
definition of government business enterprise)
1.8 This item
amends a reference to the existing Schedule to the Act, which is to become
Schedule 1 when a new Schedule 2 is inserted. This item is consequential upon
item 155.
Item 10 – Subsection 5(1)
1.9 This item inserts a definition of involved to specify when a
person is involved in a breach of a provision of the Act, for the purposes of
the new provisions in relation to breaches to be included in new Schedule 2.
(See notes on item 158, below.)
Item 11 – Subsection 5(1) (definition of involved
union)
1.10 This item repeals the definition of involved
union and is consequential upon other amendments which replace references to
an involved union with references to an employee representative.
(See notes on item 8, above.)
Item 12 – Subsection
5(1)
1.11 This item inserts the definition of a new term,
registered organisation, into subsection 5(1). A registered organisation
is defined as an organisation within the meaning of the Workplace Relations
Act 1996 or a body that is declared by regulations under the Act to be a
registered organisation. This term is used in the definition of the new term
employee representative in subsection 5(1). (See notes on item 8,
above.)
Item 13 – Subsection 5(1) (definition of
registered union)
1.12 This item repeals the definition
of registered union and is consequential upon the insertion of a new term
registered association in section 5 and the repeal of the current term
involved union. (See notes on items 8 and 11, above.)
Item 15 – Subsection 5(3A)
1.14 This item replaces an obsolete reference to legislation with the correct reference.
Item 16 – Subsection 5(6)
1.15 This item replaces
references to a ‘contravention’ of the Act in this subsection with a
‘breach’ wherever they occur in the section. This is consequential
on a distinction between conduct which breaches obligations contained in a
provision of the Act which may result in the declaration of a contravention
(which can result in civil penalties) under the proposed Schedule 2 to the Act
or the finding that a person committed an offence under clause 16 of Schedule 2
(which can result in criminal penalties). (See notes on item 158, below.)
Item 17 – Subsections 11(2) and (3)
1.16 This item replaces the existing subsections 11(2) and 11(3).
1.17 The amendments will maintain the immunity of the Commonwealth and
Commonwealth authorities against prosecution for a criminal offence.
Commonwealth employers will, however, be liable to proceedings for a declaration
of contravention by a court and to pay a pecuniary penalty pursuant to an order
of the court. The Commonwealth and Commonwealth authorities will also be liable
to the other new civil orders concerning enforceable undertakings, remedial
orders and injunctions.
1.18 The amendments will also provide that Commonwealth employees will not
have immunity against prosecution and will, therefore, be subject to all the
enforcement mechanisms under the Act. Government business enterprises and their
employees will continue to be subject to all the enforcement mechanisms under
the Act.
Item 18 – Subsection 12(1)
1.19 This item
replaces an obsolete reference to legislation with the correct reference.
Item 19 – Paragraph 12(1)(b)
1.20 Paragraph 12(1)(b)
currently provides that one of the functions of the Commission is to advise
employers, employees, or contractors either on its own initiative or on request,
on occupational health and safety matters affecting such employers, employees or
contractors.
1.21 This item amends paragraph 12(1)(b) so that the
Commission is no longer required to provide information on request, but may
still do so on its own initiative. The effect of this amendment is that in
future, Comcare will respond to requests for information or advice from
Department or statutory authorities.
Item 20 – At the end of
paragraph 12(1)(b)
1.22 This item contains consequential amendments
related to the new safety management arrangements. (See notes on items 26,
below.) The function of the Safety, Rehabilitation and Compensation Commission
(the Commission) to advise employers and employees under paragraph 12(1)(b) will
be expanded to indicate that ‘occupational health and safety
matters’ include matters to be covered by employers’ safety
management arrangements.
Item 21 – At the end of subsection
12(1)
1.23 This item amends subsection 12(1) to add a new paragraph
(h). The effect of the amendment is to give the Commission power to issue
directions on the conduct of elections for health and safety representatives
under proposed section 25A.
Item 22 – At the end of subsection
14(1)
1.24 This item adds a note to refer to the definition of
‘contractor’ in subsection 5(1) to bring attention to the broader
definition of contractor which now includes a body corporate for the purposes of
this section. (See notes on item 7, above.)
Item 23 – Subsection 16(1) (penalty)
Item 24 – At
the end of subsection 16(1)
1.25 These items repeal the penalty for
breach of this subsection, which is to be located in new Schedule 2 to the Act,
and inserts a note that a person who breaches this section may be subject to
civil action or criminal prosecution under Schedule 2.
Item 25 –
Subsection 16(2)
1.26 This item substitutes the word
‘breach’ for the word ‘contravention’ where it appears
in the subsection. (See notes on item 16, above.)
Item 26 –
Paragraph 16(2)(d)
1.27 Section 16 of the Act provides that an
employer has a general duty to protect the health and safety at work of their
employees and sets out some minimum requirements that must be complied with.
1.28 This item repeals paragraph 16(2)(d), which requires an employer to
develop an occupational health and safety policy with involved unions or other
persons the employer considers appropriate. In its place a new paragraph will
be substituted, that imposes an obligation on the employer to develop safety
management arrangements in consultation with their employees. The new paragraph
provides an exhaustive list of areas that safety management arrangements must
cover.
Item 27 – Subsection 16(3)
1.29 This item
repeals subsection 16(3) and substitutes it with a new subsection. The
development of an occupational health and safety agreement is replaced by a
requirement on the employer to develop safety management arrangements in
consultation with the employer’s employees (refer to item 26). Proposed
subsection 16(3) provides some guidance (in the form of a non-exhaustive list)
about certain additional matters which might be covered by safety management
arrangements (above the minimum requirements set out in proposed paragraph
16(2)(d)). These matters include a written occupational health and safety
policy in respect of the employer and employees, arrangements relating to risk
identification and assessment, the making of agreements relating to consultation
on occupational health and safety matters and such other matters as agreed
between the employer and their employees and employee representatives and
occupational health and safety training.
Item 28 – Subsection
16(5)
1.30 This item substitutes the word ‘breach’ for
the word ‘contravention’ where it appears in the subsection. (See
notes on item 16, above.)
Item 29 – After section
16
1.31 This item inserts new sections 16A and 16B. These sections
provide that an employer must have regard to advice of the Safety,
Rehabilitation and Compensation Commission (the Commission) when developing or
varying safety managements arrangements that are required under the proposed
paragraph 16(2)(d). Section 16B also provides employees with protection for
confidentiality by providing that a representative association may apply to the
Chief Executive Officer (CEO) of Comcare for a certificate where an employee has
requested the association’s involvement in consultations with the employer
but does not wish to be identified.
1.32 Proposed subsection 16A(1)
provides that an employer must have regard to any advice of the Commission which
may have been given to that particular employer, or employers generally, in
developing or varying safety management arrangements.
1.33 Proposed
subsection 16A(2) allows for employee representation in consultations on the
development or variation of safety management arrangements. If an employee
requests to be represented in consultations, they may be represented by another
employee of the employer or an employee representative.
1.34 Subsection
16A(4) clarifies that if an employee is represented in consultations then this
does not prevent the employee, an employee mentioned in paragraph (2)(a) or any
other employee of the employer from being involved in consultations.
1.35 Proposed subsection 16B(1) provides for the CEO of Comcare to issue
a certificate on application by a representative association if satisfied that
an employee has chosen to be represented by a representative association in
consultations with their employer.
1.36 Proposed subsection 16B(2)
provides that the application of a representative association to the CEO of
Comcare to represent employee(s) in consultation with the employer in the course
of developing or varying safety management arrangements must be in the
prescribed form.
1.37 Proposed subsection 16B(3) provides that the
identities of the employee(s) making a request for representation by a
representative association remain must confidential.
1.38 Proposed
subsection 16B(4) provides that the certificate has a finite period of
effectiveness. The period will end at the earlier of two times, when the CEO of
Comcare considers that each of the employees identified in the certificate has
requested that they no longer wish the representative association to represent
them, or in any event at the end of the 12 month period commencing when the
certificate was issued.
1.39 Proposed subsection 16B(5) provides that if
the certificate ceases to have effect under any of the circumstances outlined
then the CEO of Comcare must notify the representative association, and the
employer of the employees who were being represented, in
writing.
1.40 Proposed subsection 16B(6) provides that the certificate is
evidence of all the matters contained in it.
1.41 Proposed subsection
16B(7) provides that the CEO of Comcare may delegate his or her power to issue a
certificate for an employee representative to be involved in consultations, to
the deputy CEO of Comcare. Such delegation, if made, must be made in writing.
Item 30 – Section 17 (penalty)
Item 31 – At the
end of section 17
Item 32 – Subsection 18(1)
(penalty)
Item 33 – At the end of subsection
18(1)
Item 34 – Subsection 18(2) (penalty)
Item 35
– At the end of subsection 18(2)
Item 36 – Subsection
19(1) (penalty)
Item 37 – At the end of subsection
19(1)
1.42 These items modify the sections and subsections mentioned
in a similar way. The penalties mentioned in each section are repealed and a
note is added that civil action may be taken or a criminal prosecution may apply
for breaches of the section or subsection, the penalties for which are to be
contained in Schedule 2. (See notes on item 158, below.)
Item 38 – Subsection 20(1)
1.43 This item repeals the existing subsection 20(1) including the penalty
for contravention of the section.
1.44 The amendments are proposed to
ensure that where a person is erecting or installing any plant in a workplace
for the use of employees at work they must take all reasonably practicable steps
to ensure that the process of erection or installation, as well as the plant
itself, is safe for employees who use the plant and does not constitute a
risk to the health of employees at the workplace.
1.45 Proposed paragraph 20(1)(b) will extend the protection of subsection
20(1) to all employees at the workplace, not just those who use the plant.
1.46 This item also inserts a note that breaches of this subsection may
incur civil action or criminal prosecution as provided in Schedule 2. (See
notes on item 158, below.) The penalties for breach of this provision are to be
contained in Schedule 2.
Item 39 – Subsection 21(1) (penalty)
Item 40 –
At the end of subsection 21(1)
1.47 These items repeal the penalty
for contraventions and insert a note that civil action may be taken or a
criminal prosecution may apply for breaches of the section or subsection, the
penalties for which are to be contained in Schedule 2. (See notes on item 158,
below.)
Item 41 – Paragraph 21(2)(a)
1.48 Item 41 contains a consequential amendment related to the proposals
in item 29. It amends paragraph 21(2)(a) to reflect that matters may now be
agreed between employers and employees or their representatives.
Item
42 – Subsections 24(1) to (3)
1.49 This item amends subsections
24(1), (2) and (3) to establish a more streamlined process when an employee
requests his or her employer to establish a designated workgroup (DWG) or vary a
DWG already established.
1.50 Proposed subsection 24(1) provides that an
employee of an employer may request the employer to establish a DWG in respect
of its employees or vary a DWG that is already established.
1.51 Proposed subsection 24(1A) provides that, where requested by an
employee, an employee representative may request an employer to establish a DWG
in respect of its employees or vary a DWG that is already
established.
1.52 Proposed subsection 24(2) provides that an employer is
required to enter into consultations with its employees on establishing or
varying a DWG within 14 days of receiving the request.
1.53 Proposed
subsection 24(3) will enable an employer to initiate a process to vary a DWG by
entering into consultations with the health and safety representative and, if an
employee so requests, an employee representative in relation to the
employee.
Item 43 – After section 24
1.54 This item
inserts two new sections into the Act, sections 24A and
24B.
1.55 Proposed section 24A provides that consultations on designated
work groups (DWGs) are consultations to develop safety management arrangements
as required under paragraph 16(2)(d). However, such consultations are not to be
taken as sufficient to fulfil, on their own, the requirement to develop safety
management arrangements.
1.56 Proposed section 24B will require that the
employer maintain an up-to-date list containing details of all DWGs comprised of
employees performing work for the employer, the categories of employees included
in those DWGs and ensure that the list is available for inspection by the
employees and investigators. Categories of employee must be described in the
list.
Item 44 – Subsections 25(4) to
(10)
1.57 Section 25 currently provides for the selection and
election of health and safety representatives (HSRs). This item repeals
subsections 25(4) to (10) and substitutes a new subsection 25(4). The effect of
this amendment is to remove the existing subsections relating to the election of
HSRs. (See notes on item 45, below.) Subsection 25(4) provides that where an
employee is unanimously selected to be a health and safety representative, he or
she must inform the employer of the employees of the designated work group of
which he or she has been selected to be the HSR. A note is also added that the
heading to section 25 is to be replaced by the heading ‘Selection of
health and safety representatives’.
Item 45 – After
section 25
1.58 This item inserts new sections 25A, 25B and 25C
concerning the elections of health and safety representatives from designated
work groups.
1.59 Proposed section 25A sets out the processes to be
followed by the employer if there is a vacancy in the office of health and
safety representative (HSR) of a designated work group
(DWG).
• Proposed subsection (1) will provide that where the office
of HSR in a DWG is vacant, and a replacement has not been chosen by employees
unanimously (within a reasonable time after the vacancy occurs), the employer
must invite nominations for the office of HSR from all of the employees who are
included in the DWG.
• Proposed subsection (2) will provide that
if the office of HSR is vacant and the employer has not invited nominations
within a further reasonable time, that is not less than 6 months after the
vacancy occurred, the Safety, Rehabilitation and Compensation Commission (the
Commission) may direct an employer to invite
nominations.
• Proposed subsection (3) will provide that if more
than one employee nominates as HSR for a DWG at the close of the nomination
period, the employer must conduct, or arrange for the conduct of, an election at
the employer’s expense.
• Proposed subsection (3A) will
provide that an election conducted or arranged to be conducted by an employer,
must be conducted in accordance with regulations if this is requested by a
majority of employees normally in the DWG or by 100 employees normally in the
DWG, whichever is the lesser.
• Proposed subsection (4) will allow
a person to be taken to be elected as HSR if he or she is the only nominee at
the close of the nomination period.
• Proposed subsection (5) will
provide that an employee who has been disqualified under s.32 may not be a
candidate in the election for an HSR.
• Proposed subsection (6)
will provide that all employees in the DWG may vote in the election for an
HSR.
• Proposed subsection (7) provides that any employer
conducting or arranging for the conduct of an election must comply with any
directive issued by the Commission. (See notes on item 21,
above.)
1.60 Proposed section 25B will replace subsection 25(10) with a
simpler requirement that employers must prepare and keep up to date a list of
all HSRs and ensure that the list is available for inspection at all reasonable
times by their employees and by investigators.
1.61 Proposed section 25C
will require an employer to notify employees in a DWG of a vacancy in the office
of HSR, or the selection of an HSR, within a reasonable time.
Item 46
– Section 26
1.62 This item repeals section 26 and substitutes
three new subsections 26(1) to (3) to reflect that the safety management
arrangements governing a workplace will specify the term of office of the health
and safety representative (HSR) of a designated work group. It also provides
for the selection of an HSR in the event of a casual vacancy under a new section
26A.
1.63 Proposed section 26 provides that HSRs hold office for the
period specified in the organisation’s safety management arrangements. An
HSR who has been elected is eligible for further terms of office. If a period
is not specified in the safety management arrangements, the term of office will
be 2 years subject to sections 26A (when a casual vacancy arises) and 31 (when
an HSR resigns).
1.64 Proposed section 26A provides for the term of
office in the event of a casual vacancy occurring when an HSR ceases to hold
office as an HSR before the term for an HSR has expired. If a casual vacancy
occurs more than 6 months before the expiry of the retiring HSR’s term,
the person selected to fill the vacancy will hold office for the remainder of
the term. If the casual vacancy occurs less than six months before the expiry
of the retiring HSR’s term, the person selected to fill the vacancy will
hold office for the remainder of that term and for the next term of
office.
Item 47 – Sub paragraph
28(1)(a)(ii)
1.65 This item is proposed to allow Comcare, in addition
to the Safety, Rehabilitation and Compensation Commission, to receive requests
from health and safety representatives for investigations to be conducted at the
workplace.
Item 48 – Section 29
Item 49 –
Paragraph 29(1)(b)
Item 50 – Section 29
Item 51
– Section 29
1.66 These items substitute the word
‘breach’ for ‘contravention’ in this section and in the
appropriate grammatical form. (See notes on item 16, above.)
Item 52
– After subsection 29(3)
1.67 This amendment provides that a
provisional improvement notice issued under subsection 29(3) has effect as soon
as it is given to the relevant person under subsection 29(2)(the person
responsible for the breach) or subsection 29(3) (a person reasonably presumed to
be for the time being in charge of the activity undertaken by the
employer).
Item 53 – Subsection 29(8)
1.68 This item
is proposed to allow Comcare to receive requests from responsible persons and
others, for investigations into matters which are the subject of a provisional
improvement notice issued under this section.
Item 54 –
Subsection 29(9)
Item 55 – After subsection 29(9)
Item
56 – Subsection 29(10)
1.69 These items are proposed to allow a
health and safety representative to make a request to Comcare to investigate a
matter that is the subject of a provisional improvement notice in the event that
a responsible person, or any other person to whom a notice has been given, has
not complied with the notice or has not made a request for an investigation
under subsection 29(8).
Item 57 – After paragraph
31(1)(b)
1.70 This item contains a technical amendment to add
proposed paragraph 31(1)(ba), which clarifies that a person ceases to be a
health and safety representative if the designated work group is varied under
subsection 24(6) and such a variation results in the membership of the group
being different from what it was before the variation.
Item 58 –
Subsections 31(2) to (4)
1.71 This item replaces subsections 31(2),
(3) and (4), concerning the resignation of a health and safety representative
(HSR), with a simpler provision that an HSR may resign by notice in writing
delivered to the employer of the employees included in the designated workgroup
and must notify the employees included in the designated workgroup of the
resignation.
Item 59 – Subsection 32(1)
1.72 Section
32 deals with the disqualification of health and safety representatives. This
item is consequential to other amendments in the Bill concerning representation
of employees in provisions relating to the employer’s duty of care and
workplace arrangements.
1.73 This item amends subsection 32(1) to
provide that applications for the disqualification of a health and safety
representative for a designated work group (DWG) can be made by an employee
representative at the request of an employee in the DWG.
Item 60
– After subsection 33(2)
1.74 This item adds three new
subsections to section 33 to clarify the procedures for the election of deputy
health and safety representatives. Proposed subsection (2A) will provide that
if an election for a deputy health and safety representative is to be held, the
employer must invite nominations from all of the employees in the designated
work group (DWG). The procedures for election are based on those for the
election of health and safety representatives (HSRs) under section 25 and the
procedures for election of HSRs proposed under subsections 25A(3) to (7).
Subsections 25A(1) and (2) do not, however, apply, because the election of a
deputy is optional and not required for each DWG. (See notes on item 45,
above.)
1.75 This item also clarifies that the provisions relating to
resignation etc. and disqualification of a health and safety representative, in
sections 31 and 32 of the Act, apply to a deputy health and safety
representative in the same way as they apply to a HSR.
Item 61
– Section 34
1.76 This item inserts a new section 34 in
relation to health and safety committees. The intention is to create a less
prescriptive mechanism for the establishment and operation of health and safety
committees.
1.77 Proposed subsection (1) provides that an employer that
normally has not less than 50 employees overall in its workforce will be
required to establish a health and safety committee.
1.78 Proposed
subsection (2) provides that, in addition to the requirement in proposed
subsection (1), an employer must establish a health and safety committee in
respect of employees performing work for the employer in a particular workplace
if:
a) the number of the employees in the workplace is normally not less than
50; and
b) either:
(i) a health and safety representative of a
designated work group of employees performing work for the employer in the
workplace gives a written request to the employer seeking the establishment of
a committee; or
(ii) a majority of the employees in the workplace give a
written request to the employer seeking establishment of a committee
1.79 Proposed subsection (3) states that the constitution and
administrative operation of the committees established under subsections (1) and
(2) are to be in accordance with the safety management arrangements applying to
the employer’s employees. However, proposed subsection (4) provides that
notwithstanding any provision made for the membership of health and safety
committees in safety management arrangements, the number of members of a health
and safety committee who are employer representatives must not be greater than
the number of employee representatives.
1.80 Proposed subsection (5)
emphasises that sub committees of a health and safety committee, and other
committees concerned with occupational health and safety, may be established by
an employer in consultation with the employees or any other persons. This
amendment clarifies that the fact that a committee has already been established
under section 34 does not prevent the establishment of these additional
committees.
Item 62 – Subsection 37(3)
1.81 This
amendment substitutes Comcare for the Safety, Rehabilitation and Compensation
Commission as the appropriate body, in addition to an investigator, to which a
health and safety representative (HSR) or a supervisor can make a request for an
investigation, where there is a disagreement between the HSR and a supervisor
about whether sufficient action has been taken to remove an immediate threat to
the health and safety of employees, or whether a direction by an HSR for
employees to cease work, under subsection 37(1)(b), was necessary.
Item 63 – Section 39
1.82 This item repeals section
39 and substitutes two new provisions, sections 38A and 39, conferring powers on
Comcare which are currently exercised by the Commission.
1.83 New section
38A will allow Comcare to advise employers, employees or contractors, either on
its own initiative or on request, on occupational health and safety matters
affecting those employers, employees or contractors.
1.84 New section
39 will allow Comcare to refer persons seeking advice about an occupational
health and safety matter to experts, where Comcare considers that a person other
than a member of the staff of, or a consultant to, Comcare has special knowledge
or experience relevant to the request for advice.
Item 64 –
Subsection 41(1)(b)
1.85 This item substitutes the word
‘breach’ for ‘contravention’ in this section. (See
notes on item 16, above.)
Item 65 – Subsection
41(2)
1.86 This item amends subsection 41(2) to provide that either
Comcare or the Safety, Rehabilitation and Compensation Commission may direct an
investigator who is not a member of the staff of Comcare to conduct an
investigation under this section.
Item 66 – Paragraph
41(2)(b)
1.87 This item substitutes the word ‘breach’ for
‘contravention’ in this section. (See notes on item 16,
above.)
Item 67 – Subsection 41(2)
Item 68 –
Subsection 41(3)
Item 69 – Subsection 41(3)
Item 70
– Subsection 41(4)
1.88 Section 41 of the OHS Act enables the
Commission to direct investigators to conduct investigations concerning
compliance with the OHS Act, contravention of the OHS Act and accidents or
dangerous occurrences in the performance of work.
1.89 These items amend
section 41 to enable Comcare to have a similar role to the Commission in the
conduct of investigations under this section. They also provide that although
the Commission can revoke a direction to conduct an investigation by Comcare,
Comcare does not have the power to revoke such a direction made by the
Commission.
Item 71 – Subsection 41(5)
1.90 The
amendment in this item is consequential to other amendments in the Bill
concerning representation of employees in provisions relating to the
employer’s duty of care and workplace arrangements, and the new role for
Comcare in the conduct of investigations under this section.
1.91 The
proposed subsection 41(5) will provide that an employee representative, if
requested by an employee, may make a request to Comcare or the Commission that
an investigation be conducted at a workplace at which the employee performs work
for the employer.
Item 72 – Subsection 43(1)
Item 73
– Subsection 43(2)
Item 74 – Subsection
43(3)
1.92 These items propose a number of amendments to section 43
to clarify the obligations in the section to provide assistance and information
in relation to the conduct of investigations by an investigator.
1.93 Item 72 amends subsection 43(1) so that if an investigator requests
documents in accordance with this subsection a person is required to give the
inspector documents, or copies of documents, requested in connection with the
conduct of the investigation.
1.94 Item 73 repeals the existing
subsection and substitutes a new subsection based on the new compliance regime
for the Act, to be included in Schedule 2. (See notes on item 158,
below.)
1.95 Subsection 43(2) presently provides a penalty for failure to
comply with a requirement made by an investigator under this section. Item 73
replaces this with a provision that compliance is mandatory, and a note that
breach may result in civil action or criminal liabilities. The defence of
reasonable excuse is still to be available, under subclause 18(2) of new
Schedule 2. (See notes on item 158, below.)
1.96 Item 74 will repeal and substitute subsection 43(3). The proposed
subsection will require an investigator to return documents or copies of
documents if they are no longer needed for the conduct of an investigation and
either, a decision is made by the investigator not to use the documents in
proceedings or the documents have been used in such proceedings.
Item 75 – Subsection 45(1)
Item 76 – Paragraph
45(3)(b)
Item 77 – At the end of subsection 45(3)
Item
78 – Subsection 45(5) (penalty)
Item 79 – At the end of
subsection 45(5)
Item 80 – At the end of section
45
1.97 Section 45 allows an investigator to give a written direction
to a person who is, for the time being, in charge of the workplace that a
workplace not be disturbed in order to remove threats to health and safety or
conduct inspections, examinations or tests. These items propose a number of
amendments to section 45 including the insertion of new subsections 45(7) and
(8).
1.98 Item 75 inserts, after the words ‘person who is’,
the words ‘or who may reasonably be presumed to be’ to assist in the
operation of the subsection.
1.99 Item 76 makes a technical amendment
to the punctuation at the end of subsection 45(3)(b) consequential on the
amendment made in Item 77.
1.100 Item 77 amends subsection 45(3) to
provide an end point until which notices of directions given by inspectors under
this section must be displayed, that time being when the directions expire, are
revoked or varied. (See notes on item 80, below.)
1.101 Items 78 and 79
repeal the penalty for a contravention of subsection 45(5) and insert a note
that an employer who breaches subsection 45(5) may be subject to civil action or
criminal prosecution under Schedule 2 where the penalty for this breach is to be
provided. (See notes on item 158, below.)
1.102 Item 80 adds new
subsections 45(7) and (8) to that section.
1.103 Proposed subsection
45(7) will allow an investigator to revoke or vary a do-not-disturb direction by
giving written notice to a person who is in charge, or may reasonably be
presumed to be in charge of the workplace.
1.104 Proposed subsection
45(8) sets out the procedure for notification of a variation of a do-not-disturb
direction. A notice of variation of a direction must contain the text of the
original direction and any variation to the original direction to enable readers
of the notice to ascertain what the original directions were and how they have
been changed. The person to whom the notice is given must display it in the
workplace that is the subject of the notice and an investigator must take all
reasonable steps to give notification of the variation and its terms to those
people notified of the original direction.
Item 81 – After
section 45
1.105 Section 45 presently provides that an investigator
may give a written do-not-disturb notice to the person in control of a
workplace, plant, substance or thing. In certain circumstances, however, there
may be no possibility of delivering a written notice quickly. This item
proposes new section 45A, to address this problem by giving an investigator
power to give oral directions that a workplace or thing not be
disturbed.
1.106 New subsection (1) will provide that an oral
do-not-disturb direction can be given to a person in charge of a workplace, or
who is reasonably presumed to be in charge of a workplace, where the
investigator considers on reasonable grounds that the direction is necessary to
remove an immediate threat to the health and safety of any person or to allow
inspection and testing in the workplace, or the investigator is satisfied that
there is not adequate time to give a written notice under section
45.
1.107 New subsection (2) will provide that an oral direction remains
in force for no longer than the investigator considers reasonably necessary but
must end no longer than 48 hours after the direction is given.
1.108 New subsection (3) will require an employer to ensure that the
direction is complied with and provides that a breach of this subsection may be
subject to civil action or criminal prosecution, the penalties for which are
contained in Schedule 2. (See notes on item 158, below.)
1.109 New
subsection (4) will provide that an oral direction ceases to have effect at the
earliest of a number of possible times. They are either the end of the
specified period under subsection (2), the time when the oral direction is
revoked under subsection (5) or where a written direction is made under section
45 on the same investigation and subject as the oral direction.
1.110 New
subsection (5) will provide that an oral direction may be revoked by informing
the person who is at the time in charge of the workplace that the direction is
revoked.
1.111 New subsection (6) will provide that an oral direction
made under this section cannot be renewed or varied or another oral direction
issued in respect of the same matters for which an oral direction under this
section has already been issued. This restriction is to facilitate the giving
of written directions to follow up oral directions and to emphasise that oral
directions are only to be given in special circumstances.
Item 82
– At the end of subsection 46(3)
Item 83 – Subsection
46(4) (penalty)
Item 84 – At the end of subsection
46(4)
Item 85 – Subsection 46(6)
Item 86 –
Paragraph 46(9)(b)
Item 87– At the end of section
46
1.112 Section 46 presently confers a power on an investigator to
issue a prohibition notice if, after conducting an investigation, an
investigator forms an opinion it is reasonably necessary to issue the notice to
remove an immediate threat to the health and safety of any person. Items 81 to
86 propose a number of amendments to section 46.
1.113 Item 82 inserts
a new paragraph 46(3)(c) to provide that a prohibition notice issued under this
section by an investigator must also specify a period which the investigator
considers on reasonable grounds is sufficient to enable
compliance.
1.114 Items 83 and 84 repeal the penalty for a breach of the
section and insert a note that breaches of this subsection may incur civil
action or criminal prosecution as provided in Schedule 2. The penalties for
breach of these provisions are to be contained in Schedule 2. (See notes on
item 158, below).
1.115 Item 85 repeals subsection 46(6), and substitutes
a new subsection specifying when a prohibition notice ceases to have effect. A
prohibition notice will now cease to have effect when an investigator notifies
an employer that the employer has taken adequate action to remove the threat to
health or safety that caused the prohibition notice to be issued or,
additionally, when it is revoked under subsection 46(11). (See notes on item
87, below.)
1.116 Item 86 provides an end point to the requirement to
display prohibition notices in the affected workplace by adding that the notice
must be displayed at all times until the notice has expired or has been revoked
or varied.
1.117 Item 87 adds two new subsections to section 46.
Proposed subsection 46(11) will allow an investigator to revoke or vary a
prohibition notice by giving written notice to the person who is, or may
reasonably presumed to be, in charge of the activity in respect of which the
original notice was issued.
1.118 Proposed subsection 46(12) will set out
a number of requirements to be fulfilled when a prohibition notice is varied.
The new notice will have to set out the text of the original notice and the
variation to it and specify the time for which the variation will have effect.
The employer will have to display the new notice in a prominent place in, or
near, the workplace affected by the notice until it is revoked or varied. The
employer and the investigator will each have to take all reasonable steps to
give a copy of the new notice to each person to whom they gave copies of the
original notice.
Item 88 – Section 47
Item 89
– Paragraph 47(1)(b)
Item 90 – Section 47
Item
91 – After subsection 47(2)
Item 92 – Section
47
Item 93 – Subsection 47(6) (penalty)
Item 94
– At the end of subsection 47(6)
Item 95 – Paragraph
47(8)(b)
Item 96 – At the end of section 47
1.119 Section 47 presently confers a power on an investigator to
issue improvement notices if, after conducting an investigation, an investigator
forms an opinion that a person is contravening a provision of the Act or
regulations or has contravened a provision of the Act or regulations and is
likely to contravene that provision again. These items make a number of
amendments to section 47.
1.120 Items 88 to 90 substitute the word
‘breach’ for ‘contravention’ in this section wherever
occurring and in its appropriate grammatical form. (See notes on item 16,
above.)
1.121 Item 91 inserts a new subsection 47(2A), which
provides that an improvement notice has effect from the time it is given to a
person under this section.
1.122 Item 92 substitutes the word
‘breach’ for ‘contravention’ in this section. (See
notes on item 16, above.)
1.123 Items 93 and 94 repeal the penalty for a
contravention of subsection 47(6) and insert a note that an employer who
breaches subsection 47(6) may be subject to civil action or criminal
prosecution, the penalties for which are to be contained in Schedule 2. (See
notes on item 158, below.)
1.124 Item 95 provides an endpoint to the
requirement to display improvement notices in the affected workplace by
providing that the notice must be displayed at all times until the notice has
expired or it has been revoked or varied.
1.125 Item 96 inserts two new
subsections into section 47.
1.126 New subsection 47(10) will allow an
investigator to revoke or vary an improvement notice by giving written notice to
the person in charge of the activity, or the person reasonably presumed to be in
charge of the activity, in respect of which the original notice was
issued.
1.127 New subsection 47(11) contains notification requirements
and the form for a variation to an improvement notice. The new notice will have
to set out the text of the original notice and the variation to it and specify
the time for which the variation will have effect. The employer will have to
display the new notice in a prominent place in, or near, the workplace affected
by the notice until it is revoked or varied. The employer and the investigator
will each have to take all reasonable steps to give a copy of the new notice to
each person to whom they gave copies of the original notice.
Item 97
– After paragraph 48(1)(c)
Item 98 – Before paragraph
48(1)(d)
Item 99 – After paragraph 48(1)(d)
Item 100
– After paragraph 48(1)(f)
Item 101 – Paragraph
48(1)(k)
Item 102 – Before paragraph 48(1)(m)
Item 103
– Paragraph 48(1)(m)
Item 104 – Paragraphs 48(2)(d) and
(e)
1.128 Section 48 presently provides for appeals that can be made
against various decisions taken by investigators while conducting
investigations. These items make a number of amendments to section 48.
1.129 Items 97 to 100 insert new paragraphs into section 48(1). They
are consequential amendments to allow appeals against the new powers of
investigators to revoke or vary directions not to disturb a workplace,
prohibition notices and improvement notices under the proposed amendments to
sections 45, 46, and 47 or to make an oral direction under section 45A.
1.130 Items 101 to 103 are consequential amendments to reflect the
changes to provide for employee representatives under the Act. The items amend
subsection 48 (1) to provide that appeals against decisions taken by
investigators may be made by an employee representative in relation to a
designated workgroup, at the request of an employee working in an affected
designated workgroup. If there is no designated workgroup, an affected employee
may request an employee representative to make the appeal.
1.131 Item
104 is a consequential amendment similar to items 101 and 103. It provides that
an employee representative (if requested by an affected employee), may appeal
under subsection 48(2) against a decision of an investigator to cancel a notice
under section 29, or a decision by an investigator that an employer has taken
adequate action to remove a threat to safety under section 46.
Item 105
– Section 50
1.132 Section 50 presently prohibits a person
from tampering with or removing notices issued by investigators that must be
displayed under various sections of the Act.
This item repeals section 50
and inserts a new section which maintains the obligation not to remove or tamper
with notices and, in addition, reflects amendments to the requirements to the
display of notices, copies of notices or variations to notices under the
relevant subsections. The requirement not to tamper or remove a notice stands
until the notice or direction to which it relates has expired, is revoked or a
new notice is issued following the variation of the notice or direction.
1.133 This item also repeals the penalty for a contravention of the
section and inserts a note that a person who breaches this section may now be
subject to criminal prosecution, the penalty for which is contained in Schedule
2. (See notes on item 158, below.)
1.134 Division 3 of Part 4 of the Act (sections 52 to 67) provides for
inquiries by the Commission that may lead to the reporting to Parliament of
employers who breach the requirements of the legislation. Section 52 of the Act
provides that the Division does not apply to a GBE.
1.135 Section 53
provides that where an investigator has conducted an investigation, the
investigator must prepare a written report and provide it to the Commission.
The Commission must give a copy of the report to the employer together with any
comments it may wish to make. This item amends section 52 to ensure that
section 53 applies to Government business enterprises (GBEs). It is intended
that section 53, but no other part of Division 3 of Part 4 of the Act, will
apply to GBEs.
Item 107 – Subsection 54(2)
Item 108 –
Subsection 54(3)
1.136 Section 54 confers a power upon the Safety,
Rehabilitation and Compensation Commission (the Commission) to obtain
information and documents relevant to a report of an investigation under
subsection 53(1) in circumstances where it has reason to believe that a person
is capable of giving information or producing documents. Subsection 54(2)
provides that a person must not refuse or fail to provide such information or
produce such documents. Subsection 54(3) provides that subsection (2) does not
apply if the person has a reasonable excuse. These items repeal subsections (2)
and (3) and insert a provision which provides that a person must comply with a
requirement to give information or provide documents made by the Commission.
1.137 This item also repeals the penalty for contravention of this
subsection and inserts a note that a person who breaches this section may be
subject to criminal prosecution, as set out in Schedule 2 to the Act. (See
notes on item 158, below.) The defence of reasonable excuse is still to be
available for criminal liability, under subclause 20(2) of Schedule 2.
Item 109 – Section 57(1) (penalty)
Item 110 –
At the end of subsection 57(1)
Item 111 – Subsections 57(2) and
(3)
1.138 Subsection 57(1) provides that a person served with a
summons under section 56 must not (a) fail to attend as required by the summons
or (b) must not fail to appear and report from day to day. Subsection 57(2)
provides that subsection (1) does not apply if the person has a reasonable
excuse. Subsection 57(3) also provides that paragraph (1)(b) does not apply if a
person has been excused or released from further appearance by a member of the
Commission. These items repeal subsections (2) and (3), repeal the penalty for
contravention of this subsection and insert a note that a person who breaches
this section may be subject to criminal prosecution, the penalty for which is
contained in Schedule 2 to the Act. (See notes on item 158, below.) The
defence of reasonable excuse is still to be available for criminal liability,
under subclause 20(2) of Schedule 2.
Item 112 – Section 59
Item 113 – Subsection 59(1) (penalty)
Item 114
– At the end of subsection 59(1)
Item 115 – Subsection
59(2)
1.139 Subsection 59(1) presently provides that a person
appearing as a witness must not refuse or fail to be sworn in, to answer
questions or to produce documents when appearing as a witness before the
Commission. Subsection 59(2) provides that subsection (1) does not apply if the
person has a reasonable excuse. These items repeal subsection (2) and remove
the words ‘refuse or’ from the section to clarify a person’s
obligations under this section. In addition, these items repeal the penalty for
contravention of this section and insert a note that a person who breaches this
section may be subject to criminal prosecution, the penalty for which is
contained in Schedule 2 to the Act. (See notes on item 158, below.) The
defence of reasonable excuse is still to be available for criminal liability,
under subclause 20(2) of Schedule 2.
Item 116 – Section
61(penalty)
Item 117 – At the end of section
61
1.140 Section 61 proscribes certain actions which constitute
contempt of the Safety, Rehabilitation and Compensation Commission. These items
repeal the penalty for contravention of this section and insert a note that a
person who breaches this section may be subject to criminal prosecution, the
penalty for which is contained in Schedule 2 to the Act. (See notes on item
158, below.)
Item 118 – Section 64 (penalty)
Item 119
– At the end of section 64
1.141 Section 64 provides that an
employer must not act in a prejudicial manner to an employee because the
employee has appeared, proposes to appear, as a witness at an inquiry, or
because the employee has given, or proposes to give, evidence at an inquiry.
These items repeal the penalty for contravention of this section and insert a
note that a person who breaches this section may be subject to a civil action
the penalty for which is contained in Schedule 2 to the Act. (See notes on item
158, below.)
Item 120 – Paragraph 66(1)(a)
1.142 Section 66 provides
that where the Commission forms the opinion that an employer has failed to
comply with a direction given under section 45 or a notice issued under section
46 or 47, it may prepare and give to the Minister a report to this effect.
Where such a report is given, the Minister must lay a copy of the report before
each House of the Parliament within 15 sitting days of receipt of the report.
This item contains a consequential amendment related to the proposal to allow
the issuing of oral directions under section 45A.
1.143 This item replaces an obsolete reference to legislation with the
correct reference.
Item 122 – Subsection 68(1)
Item
123 – Subsection 68(2)
1.144 Section 68 provides for the
notification and reporting of accidents and dangerous occurrences. These items
are proposed to amend section 68 to remove the need for employers to provide
both a notice and a report to the Safety, Rehabilitation and Compensation
Commission (the Commission) when an accident or death occurs in the
workplace.
1.145 Item 122 removes the requirement for an employer to
provide a report to the Commission from subsection 68(1). As a consequence item
123 removes the provision to make regulations relating to the making of reports
under this section.
Item 124 – Subsection
70(7)
1.146 Subsection 70(7) currently provides that the Safety,
Rehabilitation and Compensation Commission must at all times ensure that there
is available for inspection at its offices an up to date copy of each document
incorporated in a code of practice under subsection 70(3). Inspection of such
documents at the offices of Comcare is preferable because Comcare’s
offices are more readily accessible.
1.147 This item amends the Act to
enable documents incorporated in codes of practice under subsection 70(3) to be
inspected at the offices of Comcare.
1.148 Subsection 70(7) is,
therefore, amended to omit ‘offices of the Commission’ and
substitute ‘each of the offices of Comcare’.
Item 125 – Section 71
Item 126 – Section
71
1.149 Section 71 provides for the use of codes of practice as evidence in proceedings under the Act where it is alleged that a person contravened a provision of the Act or regulations in relation to which an approved code of practice was in effect at the time of the alleged contravention or failure. These items substitute the word ‘breach’ for ‘contravention’ in this section in wherever occurring and in its appropriate grammatical form. (See notes on item 16, above.)
Item 127 – Section 72 (penalty)
Item 128 – At
the end of section 72
Item 129 – Subsection
72(2)
1.150 Subsection 72(1) prohibits a person from interfering or
rendering ineffective, or requiring or otherwise causing another person to
interfere with or render ineffective, protective equipment or safety devices in
the workplace. Subsection 72(2) provides that subsection (1) does not apply if
a person has a reasonable excuse.
1.151 These items amend section 72 by
repealing subsection (2). In addition, these items repeal the penalty for a
contravention of the section and insert a note that a person who breaches
section 72 may be subject to criminal prosecution, the penalty for which is
contained in Schedule 2 to the Act. (See notes on item 158, below.) The defence
of reasonable excuse is still to be available for criminal liability, under
subclause 18(2) of Schedule 2.
Item 130 – Section 73
(penalty)
Item 131 – At the end of section
73
1.152 Section 73 prohibits an employer from levying or permitting
to be levied on their employees any charge in respect of any thing done or
provided in accordance with the Act or the regulations in order to ensure the
health and safety of the employees at work. These items repeal the penalty for
a contravention of section 73 and insert a note that an employer who breaches
section 73 may be subject to civil action, the penalty for which is contained in
Schedule 2 to the Act. (See notes on item 158, below.)
Item 132 – Paragraph 74(1)(c)
Item 133 – Paragraph
74(1)(d)
Item 134 – After paragraph 74(1)(d)
Item 135
– Paragraph 74(1)(f)
Item 136 – Subparagraph
74(1)(g)
1.153 These items make a number of amendments to the matters
that are to be included in annual reports that are required to be submitted by
Commonwealth Departments or Commonwealth authorities under section 74. The
purpose of the amendments is to streamline the annual reporting requirements by
reducing some of the prescriptive aspects of reporting under the section and
making it more outcome focussed.
1.154 Item 132 deletes paragraph
74(1)(c) removing prescriptive elements to be included in an annual report and
specific elements that will be no longer relevant as a consequence of amendments
to the Act. An employer will now be required to include in an annual report
details of the safety management arrangements in a workplace required under
paragraph 16(2)(d). (See notes on item 26, above.)
1.155 Item 133
replaces the word ‘measures’ with the word ‘initiatives’
in paragraph 74(1)(d).
1.156 Item 134 inserts a new paragraph 74(1)(d) to
require that health and safety outcomes, including the impact on injury rates of
employees achieved as a result of initiatives taken under paragraph 74(1)(d), or
previous initiatives, must be included in the annual report.
1.157 Item
135 substitutes a new simplified paragraph (f) that provides that the annual
report must include details of investigations and notices given to an employer
under sections 29, 46 and 47 during the year.
1.158 Item 136 repeals
paragraph 74(1)(g) and substitutes a new paragraph providing that the annual
report must include details of other such matters as are required by guidelines
approved on behalf of the Parliament by the Joint Committee of Public Accounts
and Audit. If the Committee issues guidelines on occupational health and safety
matters, annual reports will be required by this Act to comply with such
guidelines.
Item 137 – Subparagraph
75(c)(iii)
1.159 Section 75 provides that the annual report of the
Safety, Rehabilitation and Compensation Commission (the Commission) must contain
a report on the operation of the Act and regulations including various
statistical elements. This item is a consequential amendment related to the
proposal to insert a new section 45A into the Act to allow investigators to
issue oral directions not to disturb a workplace. (See notes on item 81,
above.) The Commission will now be required to include statistics on directions
issued under section 45A in its annual report.
Item 138 – Subsection 76(1) (penalty)
Item 139
– At the end of subsection 76(1)
Item 140 – Subsection
76(2)
1.160 Section 76 prohibits an employer from dismissing,
injuring or prejudicially altering an employee’s position, or threatening
to take such action, because an employee has, or proposes to, make a complaint
concerning the health, safety and welfare of employees, assist the conduct of an
investigation or cease to perform work in accordance with a direction by a
health and safety representative.
1.161 Items 138 and 139 repeal the
penalty for a breach of subsection 76(1) and insert a note that an employer who
breaches subsection 76(1) may be subject to civil action, the penalty for which
is contained in Schedule 2 to the Act. (See notes on item 158, below.)
1.162 Item 140 repeals subsection 76(2). The conduct of proceedings
for breach of this section is to be provided for under Schedule 2 to the Act.
(See notes on item 158, below.)
Item 141 – Subsections 77(1) and
(2)
Item 142 – Subsection 77(3)
Item 143 –
Subsection 77(3)
1.163 Section 77 provides for the institution of
proceedings for an offence against the Act or the regulations. The section
provides that Comcare or an investigator may institute such proceedings and, in
the event that proceedings have not been instituted within 6 months, a health
and safety representative for a designated work group (DWG) or an involved union
in relation to a DWG, may request in writing that Comcare institute such
proceedings.
1.164 Item 141 repeals the subsections and substitutes
subsections (1), (2), (2A) and (2B). The new subsections provide a clearer
structure to the section and reflect the change in the representation of
employees in the conduct of health safety matters in the workplace from involved
unions to employee representatives acting on the request of employees. New
subsection (2B) will provide that any requests to Comcare to institute
proceedings by health and safety representatives, or employee representatives in
relation to DWGs, must be in writing.
1.165 Items 142 and 143 are
consequential amendments to reflect the new structure of the section and the
change from involved unions to employee representatives.
Item 144
– Subsection 78(1)
Item 145 – Subsection
78(2)
Item 146 – Subsection 78(3)
Item 147 –
Subsection 78(4)
1.166 Section 78 sets out the conditions under
which the conduct of directors, agents and servants of a body corporate will be
attributed to a body corporate in proceedings for an offence against the Act or
the regulations. These items omits the words ‘an offence against’
and substitute ‘a breach of’ in subsections 78(1) and (3) and omit
the words ‘a prosecution for an offence against’ and substitute
‘proceedings for a breach of’ in subsections 78(2) and (4). The
amendments are necessary as a consequence of amendments to the compliance
elements of the Act. (See notes on item 16, above.)
Item 148 –
Section 79
Item 149 – Paragraph 79(a)
1.167 Section
79 provides, that subject to the effect of a contravention of the Act under
section 80, the Act does not confer a right of action in any civil proceedings
in respect of any contravention of a provision of this Act or the regulations,
or confer a defence to an action or otherwise affect a right of action in any
civil proceedings.
1.168 Item 148 inserts the words ‘(other than
proceedings under Part 1 of Schedule 2)’ after the words ‘civil
proceedings’ wherever they occur in section 79. This amendment is
necessary as a consequence of amendments to the compliance elements of the Act.
(See notes on item 158, below.)
1.169 Item 149 substitutes the word
‘breach’ for ‘contravention’ in paragraph 79(a). (See
notes on item 16, above.)
Item 150 – Section 80
Item
151 – Subsection 80(2)
1.170 Section 80 provides for the effect
of a contravention of the Act or regulations upon contracts of
employment.
1.171 These items substitute the word ‘breach’
for ‘contravention’ in these provisions wherever occurring and in
its appropriate grammatical form, including the heading to section 80. (See
notes on item 16, above.)
Item 152 – Paragraph
82(1)(c)
1.172 This item amends paragraph 83(1)(c) in accordance with
the amendments proposed to section 25 of the Act which provide that elections
for health and safety representatives may be requested to be conducted in
accordance with the relevant Regulations. (See notes on item 45,
above.)
Item 153 – Paragraphs 82(1)(d) and (e)
Item
154 – Paragraph 82(1)(h)
1.173 Section 82 provides for the
making of regulations for the Act. These items repeal paragraphs 82(1)(d), (e)
and (h) and substitute a new paragraph (h). The amendments reflect changes to
the provisions in relation to workplace arrangements under the Act and also
allow for higher penalties for contraventions of the regulations.
Item 155 – Schedule (heading)
1.174 The Schedule to the Act specifies some statutory corporations that
are Government business enterprises (GBEs) for the purposes of the Act as per
the definition of ‘Government business enterprise’ in subsection
5(1). Other GBEs are automatically covered by the definition in subsection
5(1). GBEs are able to be prosecuted for breaches of the Act.
1.175 Item
155 will change the heading of the Schedule to Schedule 1. This amendment is
necessary as a consequence of the inclusion of a new Schedule, Schedule 2, to
the Act. (See notes on item 158, below.)
1.176 Items 156 and 157 amend
Schedule 1 to the Act to omit those bodies for which it is no longer appropriate
that they be included in the Schedule, or include certain bodies that are GBEs
for the purposes of the Act but do not fall automatically fall within the
definition of ‘Government business enterprise’ in subsection 5(1).
1.177 Item 156 inserts the following bodies into the Schedule:
• Australian Government Solicitor
• Defence Housing
Authority.
1.178 Item 157 will omit the following bodies from the
Schedule:
• ANL Limited
• Health Insurance
Commission
• Housing Loans Insurance Corporation
• Pipeline
Authority
• Telstra Corporation Limited.
1.179 Telstra Corporation Limited remains a GBE for the purposes of the
Act, as it comes within paragraph (b) of the definition of government
business enterprise in section 5 of the Act.
Item 158 – At
the end of the Act
1.180 This item inserts a new schedule,
‘Schedule 2 – Civil proceedings and criminal prosecutions in respect
of breaches of the Act’. The Act presently provides only for criminal
prosecutions, requiring proof beyond reasonable doubt, and providing sanctions
with a deterrent effect but limited capacity for remedial orders. New Schedule
2 will provide for civil penalties, requiring proof only to a civil standard,
enabling remedial orders, and encouraging voluntary compliance through provision
for enforceable undertakings. It will retain provision for criminal penalties,
in more serious cases, and in cases which are more appropriately dealt with in
the criminal justice system (such as contempt of the Safety, Rehabilitation and
Compensation Commission). The Schedule will also make provision for maximum
penalties significantly higher than the maximum penalties currently provided,
consistent with current Commonwealth criminal law policy. The Schedule will
also explain the interaction between civil proceedings and criminal prosecutions
and the procedures for instigating civil proceedings.
1.181 New
Schedule 2 is modelled in large part on the enforcement approach of the
Commonwealth Authorities and Companies Act 1997, which is in turn
modelled on the Corporations Law.
NEW SCHEDULE 2 – CIVIL PROCEEDINGS AND CRIMINAL
PROSECUTIONS IN RESPECT OF BREACHES OF THE ACT
NEW PART 1 –
CIVIL PROCEEDINGS
1.182 References to ‘person’ in the new Part 1 of Schedule 2
include the body politic that is the Commonwealth (see Acts Interpretation
Act 1901). This means that all of the various civil sanctions proposed in
the new Part 1 of Schedule 2 can be pursued against the Commonwealth (as well as
Commonwealth authorities).
New clause 1 – Courts that may
exercise jurisdiction under this Part
1.183 This clause provides that
jurisdiction in civil proceedings is vested only in the Federal Court of
Australia and the Supreme Courts of the States and Territories.
New
clause 2 – Declarations of contravention
1.184 This clause
lists the provisions of the Act, breach of which will result in a finding of a
contravention of this clause. Subclause (2) retains the reverse onus that
presently exists in section 76 of the Act, in respect of any alleged
victimisation by dismissal of an employee because of the employee’s
actions under the Act: where all the facts other than the reason for the
relevant action have been proved, the person who allegedly breached section 76
bears the onus of proving their action was not taken for the proscribed
reason.
New clause 3 – Declaration of contravention is
conclusive evidence
1.185 This clause provides that a declaration by
a court of a contravention is conclusive evidence of the matters specified in
it. This precludes any rehearing of the elements of a contravention, in
proceedings to enforce a declaration.
New clause 4 – Pecuniary
penalty orders
1.186 This clause enables a court which has declared a
contravention to impose a pecuniary penalty order, and specifies the maximum
amounts for the various provisions in respect of which contraventions may be
declared. These maximum amounts are in many respects significantly increased
beyond the maximum penalties presently provided under the Act, consistent with
current Commonwealth criminal law policy.
New clause 5 – Who may
apply for a declaration or order?
1.187 This clause provides that
only Comcare or an investigator may apply for a declaration of contravention or
pecuniary penalty order.
New clause 6 – Time limit for
application for a declaration or order
1.188 This clause provides
that proceedings must be commenced within 6 years of the relevant
breach.
New clause 7 – Conduct constituting a breach of 2 or
more provisions listed in subclause 2(1)
1.189 This clause provides
that, while a person may be subject to proceedings in respect of multiple
contraventions, the person is not liable to multiple penalties for the same
conduct.
New clause 8 – Civil evidence and procedure rules for
declarations of contraventions etc.
1.190 This clause confirms that
the rules of evidence and procedure for civil matters apply under this
Part.
New clause 9 – Civil proceedings after criminal
proceedings
New clause 10 – Criminal proceedings during civil
proceedings
New clause 11 – Criminal proceedings after civil
proceedings
New clause 12 – Evidence given in proceedings for
penalty not admissible in criminal proceedings
1.191 These clauses
provide that civil proceedings in respect of conduct cannot proceed after a
criminal conviction for substantially the same conduct, and must be stayed if
criminal proceedings are started, but do not preclude later criminal
proceedings; however, evidence in civil proceedings is not admissible in
criminal proceedings, unless the criminal proceedings concern falsity of
evidence.
New clause 13 – Relief from liability for
contravention of subclause 2(1)
1.192 This clause provides a general
defence where a person acted honestly and ought fairly to be
excused.
New clause 14 – Injunctions
1.193 This
clause will provide relevant courts with the power to grant injunctions in
relation to both civil and criminal proceedings for alleged or potential
breaches of the Act.
1.194 Clause 14 will provide that Comcare or an
investigator may apply to a court for an injunction against a person who has
breached, is breaching or proposes to breach the Act or the
regulations.
1.195 Subclauses (2) to (5) will allow the court to grant
prohibitory, mandatory or interim injunctions restraining persons from
performing acts in breach of the Act or its regulations, or requiring persons to
perform acts to prevent a breach of the Act or its regulations.
1.196 In
addition, the court, when granting a prohibitory injunction, will be able to
make orders requiring a person to do something if the court thinks this is
desirable.
1.197 Subclauses (6) to (8) will provide for the discharge
of injunctions on application, prevent the court from requiring that an
applicant give an undertaking as to damages as a condition of granting an
interim injunction and provide that the powers conferred on the court by this
section are in addition to and do not limit any other powers of the court.
New clause 15 - Remedial orders
1.198 This clause will
allow a court to make certain remedial orders that it considers appropriate, to
rectify a state of affairs.
1.199 Subclause (1) will set out the
circumstances in which remedial orders might be made by a court in respect of a
declaration or conviction generally. A court will be able, if requested to do
so, to make a remedial order to fully or partly remedy a state of affairs where
a court has made a declaration under clause 2 of Schedule 2 to the Act, or
convicts a person of an offence against the Act or the regulations. The court
will be able to make remedial orders if the court thinks that it is appropriate
to remedy a state of affairs that arose as a direct or indirect result of the
conduct that was the subject of the declaration or offence. In making orders
the court will have to consider any relevant material given to it by
Comcare.
1.200 Subclause (2) will have a similar operation to subclause
(1) but will provide for the making of particular types of orders by courts
where an employer has injured or threatened to injure in their employment an
employee who has either appeared, or is proposing to appear, as a witness at an
inquiry under section 64, or has taken action in the circumstances outlined in
section 76 (employer not to dismiss etc employee of certain grounds). The Court
will be able to make orders to reinstate the employee, or pay them
compensation, or to issue injunctions to prevent or remedy conduct threatened to
the employee by the employer.
1.201 Subclause (3) provides that if a
court makes a remedial order, it may also make any other consequential orders
that it considers appropriate.
New clause 16 – Undertakings
1.202 This clause enables Comcare to accept a written undertaking
relating to an obligation under the Act. Undertakings may provide an
alternative to civil proceedings, and can be accepted whether or not civil
proceedings have been commenced. The clause also provides for enforcement of
undertakings, either by direct order or by resumption of suspended
proceedings.
NEW PART 2 – CRIMINAL PROSECUTIONS
New clause 17 – Criminal jurisdiction not conferred on Federal
Court
1.203 This clause expresses that criminal jurisdiction is not
conferred on the Federal Court. It should be noted that jurisdiction with
respect to offences against Commonwealth law is conferred on every State and
Territory Court which has jurisdiction to hear trials for equivalent State and
Territory offences, under subsection 68(2) of the Judiciary Act
1903.
New clause 18 – Offences resulting in death or serious
bodily harm
1.204 This clause creates an offence, where breach of a
specified provision results in death or serious bodily harm, and the person was
either negligent or reckless as to that outcome. Subclause (2) provides a
defence of reasonable excuse to offences created by the new subclause (1)
relating to the breach of subsection 43(2) (requirement to provide assistance
and information), section 50 (requirement not to tamper with notices) and
section 72 (interference etc with equipment etc.).
New clause 19
– Offences exposing employees to a substantial risk of death or serious
bodily harm
1.205 This clause creates an offence, where breach of
subsection 16(1) (duties of employers in relation to their employees etc.),
exposes an employee to a substantial risk of death or serious bodily harm where
the employer was negligent or reckless as to that outcome.
New
clause 20 – Other offences
1.206 This clause creates an offence
of intentionally breaching certain provisions relating to enforcement of the
Act, concerning matters such as cooperation with investigation and enquiry
proceedings. Subclause (2) provides a defence of reasonable excuse to offences
relating to breach of subsection 54(1) (requirement to give information or
produce documents), section 57 (failure of witness to attend) and section 59
(refusal to be sworn or to answer questions).
New clause 21 –
Maximum penalties
1.207 This clause provides maximum penalties for
the offences created by clauses 16 and 17, which vary according to the provision
breached in each case. Subclause (3) provides that a court must not direct that
a person serve a sentence of imprisonment in default of payment of a fine
imposed under this clause.
PART 2 – TRANSITIONAL, APPLICATION AND SAVINGS
PROVISIONS
DIVISION 1 – PROVISIONS RELATING TO
EMPLOYER’S DUTIES
1.208 This part contains transitional provisions related to the
amendments to employers’ duties contained in Part 1 of Schedule
1.
Item 159 – Definitions
1.209 This item contains
definitions used in the transitional provisions in this division.
Item
160 – Safety management arrangements
1.210 This item provides
that an employer is not in breach of section 16(1) of the OHS(CE) Act by reason
only of having failed to develop safety management arrangements under paragraph
s16(2)(d) of that Act. The provision will be in force for 18 months after
commencement and, in effect, gives an employer 18 months to develop safety
management arrangements.
Item 161 – Occupational health and
safety policies
1.211 This provision will preserve OH&S policies
developed under the repealed paragraph 16(2)(d) until such time that safety
management arrangements have been developed. OH&S policies may be preserved
if incorporated in the safety management arrangements or if the safety
management arrangements provide that those policies continue to apply. (See
notes on item 26, above.)
Item 162 – Agreements between
employers and involved unions
1.212 This item preserves agreements
made under repealed or amended provisions. Agreements made under subsection
16(3) will continue while the occupational health and safety policy under which
they were made has effect. Agreements under paragraph 21(2)(a) in force
immediately before commencement will continue to be effective, despite the
amendment to paragraph 21(2)(a), between the employer and any involved union.
DIVISION 2 – PROVISIONS RELATING TO WORKPLACE ARRANGEMENTS
1.213 This part contains transitional provisions relating to the
proposals to amend the workplace arrangements provisions of the Act contained in
Part 1 of this Schedule.
Item 163 –
Definitions
1.214 This item contains definitions used in the
transitional provisions in this division.
Item 164 – Designated
work groups
1.215 This item provides, in the interest of ensuring
continuity, that a designated work group in existence immediately before the
commencement of the proposed amendments to the Act continues in existence as if
had been established under the amended section 24.
Item 165 –
Consultations
1.216 This item will allow completion of consultations
with respect to the establishment of designated work groups under s.24 that are
underway but not completed before commencement. This item will apply for 3
months after commencement.
Item 166 – Health and safety
representative
1.217 This item ensures continuity by allowing a
health and safety representative holding office at the time of commencement to
remain in office subject to the OHS(CE) Act as it is in force after
commencement
Item 167 – Elections
1.218 This item
will allow for the completion of an election for a health and safety
representative that has commenced at the time this Schedule commences under the
relevant procedures prior to the commencement of the amendments.
Item 168
– Applications under section 32
1.219 This item will allow an
application for disqualification of a health and safety representative that has
been made but not determined upon the commencement of the amendments to continue
to be determined under the old procedures as if the Act had not been amended.
(See notes on item 59, above.)
Item 169 – Health and safety
committees
1.220 This item will allow existing health and safety
committees to remain in place in their present form after the commencement of
amendments to the Act until the replacement of the committee by a committee
established under section 34 of the Act as in force after commencement or the
end of the period of 6 months after commencement, whichever is earlier. (See
notes on items 61, above.)
1.221 An employer is not taken to be in
breach of the amended section 34, which outlines the new circumstances when an
employer is required to establish a health and safety committee, if a committee
continues in existence under this item in respect of the employer’s
employees.
DIVISION 3 – MISCELLANEOUS PROVISIONS
1.222 This Division contains application provisions related to amendments
in Part 1 not affected by the preceding Divisions.
Item 170 –
Time of effect of notices
1.223 This item provides that the new
provisions on improvement notices apply only to those notices issued on or after
the commencement of those provisions. (See notes on items 52 and 91,
above.)
Item 171 – Reports of investigation
1.224 This item provides that the proposed amendment to the
provisions of the Act concerning reports of investigations applies only to those
investigations begun on or after the commencement of the amendment. (See notes
on item 106, above.)
Item 172 – Notification of accidents and
dangerous occurrences
1.225 This item provides that the proposed
amendments on notification and reporting of accidents and dangerous occurrences
apply only to those occurring on or after the commencement of those provisions.
(See notes on items 122 and 123, above.)
Item 173 – Annual
Reports
1.226 This item provides that annual reports required under
section 74 of the OHS(CE) Act for the financial year in which the item commences
is not required to include matters that are required by guidelines approved by
the Parliament by the Joint Committee of Public Accounts and Audit. This
transitional provision won’t affect any obligations that may apply in
relation to guidelines approved by the Parliament other than in relation to
occupational health and safety matters. (See notes on item 136,
above.)
Item 174 – Regulations prescribing
penalties
1.227 This item provides that regulations made by the
Governor-General under paragraph 82(1)(h) that were in force prior to the
commencement of amendments to the paragraph will continue if force as if they
had been made under the new paragraph. (See notes on item 154, above.)
Employment, Workplace Relations and Small Business Legislation
Amendment (Application of Criminal Code) Act 2001
Item 1 –
Subsection 2(3)
Item 2 – Schedule 1 (Act heading after item
88)
Item 3 – Items 89 to 132 of Schedule
1
1.228 These items repeal various amendments in the Employment,
Workplace Relations and Small Business Legislation Amendments (Application of
the Criminal Code) Act 2001 which related to what would have been the
Occupational Health and Safety (Commonwealth Employment) Amendment Act
2001. These consequential amendments are necessary given that the
Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000
lapsed when Parliament was prorogued prior to the 2001 election.