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Client Update: Draft Model Work Health and Safety Regulations and Codes of Practice released

16 December 2010

In brief: Any company or individual conducting business, regardless of whether it has any employees, will be liable under new draft regulations which are the next step towards the national harmonisation of occupational health and safety laws. Partner Peter Arthur (view CV) and Lawyer Jonathan Adamopoulos report on new draft Regulations and draft Codes of Practice released by Safe Work Australia.

Background and context

As we have reported previously (see Focus: Occupational Health & Safety), governments across Australia have been working towards establishing mirror occupational health and safety laws. Following its release of the final draft of the Model Work Health and Safety Bill in November 2010, Safe Work Australia has released the first draft of the Model Work Health and Safety Regulations and the first instalment of draft Codes of Practice.

Draft Regulations

Overview

The Draft Regulations are comprehensive and are intended to supplement the duties set out in the Model Bill. In most cases, the Regulations impose broadly similar obligations to those contained in current state and territory regulations. For most jurisdictions, however, there will be a fundamental change in that the duties will not be restricted to employers, but will extend to all persons (or companies) conducting a business or undertaking (PCBU) regardless of whether that person has any employees.

Some of the measures that all PCBUs will be required to implement under the Draft Regulations include:

  • safe workspace layouts that allow workers to enter, exit and move around without risk to their health and safety;
  • proper lighting and ventilation;
  • effective communication with isolated and remote workers (such as employees who work from home); and
  • the establishment and testing of emergency and evacuation plans.

In addition, the Draft Regulations cover workplace consultation, control of noise, the design, manufacture and supply of work equipment, the use and storage of hazardous materials and the regulation of major hazard facilities and other health and safety issues. Safe Work Australia is expected to release a separate chapter on mines early next year.

Construction projects: Designation of 'principal contractor' retained

The Draft Regulations have retained the role of the principal contractor in construction projects. As under existing laws in New South Wales, Queensland and Victoria, a PCBU will be regarded as a principal contractor where it has been engaged as a principal contractor and is authorised with the management and control necessary to discharge its obligations as a principal contractor.

The duties of the principal contractor include:

  • the identification of hazards and the assessment and control of health and safety risks;
  • ensuring that safe work method plans for high-risk construction work are prepared and are complied with by workers; and
  • the establishment of a work health and safety management plan.

While the principal contractor will be largely responsible for site safety, PCBUs who commission construction projects will be required to consult with building designers about how to ensure that risks to health and safety during the construction work are eliminated or controlled.

Penalties and enforcement

The range of penalties for a breach of the Draft Regulations has not yet been settled. Presently, the Model Bill caps all penalties for breach of the Regulations at $30,000. Safe Work Australia has, however, foreshadowed an increase to $60,000 for corporations. Individuals may also be liable for the same offences as corporations although the maximum penalty will be capped at one-fifth the maximum payable by a corporation. It has been proposed that the penalty range will be left to each individual government to determine when the laws are enacted. There will be three levels of offences ranked according to culpability and risk of harm associated with the particular breach. In line with current practice, workplace safety regulators will be able to issue infringement notices for a breach of the Regulations and impose a fine at a lower amount than the maximum.

As highlighted in the issues paper released with the Draft Regulation, some of the obligations under the Draft Regulation are 'linked' with the general duties of PCBUs under the Model Bill.  The effect of this is that a PCBU may be liable for prosecution and exposed to a penalty under the Model Bill (which includes fines of up to $3 million for recklessly exposing a worker to death or serious injury) where its failure to comply with the Regulations has led to a failure to comply with a principal duty under the Bill.

Codes of Practice

Safe Work Australia has also released 12 draft codes of practice covering topics such as consultation, risk assessment, removal of asbestos and construction work. Under the Model Bill, a failure to comply with a code of practice will not be an offence in and of itself. However, the failure to comply with a code may be used in a prosecution to demonstrate that a PCBU did not do all that was reasonably practicable to comply with its duties under the Model Bill. Accordingly, it is advisable that systems of work are consistent with its codes. Safe Work Australia is expected to release further draft codes soon.

Timeframe and implications

Safe Work Australia is accepting submissions on the Draft Regulations and codes up until 4 April 2011.  Following this, it will prepare a final draft for approval by the Workplace Relations Ministers' Council. It is expected that the Model Bill and final version of the Regulations will be adopted by all governments in December 2011 and will commence on 1 January 2012.

In the meantime, employers should consider how the Draft Regulations and codes will affect their business and what changes will need to be made to their systems of workplace safety.

For further information, please contact:

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