Easy OHS

Solicitors Warn to Prepare Early for Harmonisation Laws

Monday, April 26, 2010
EasyOHS representatives at the Melbourne Safety Show took notes of the presentation by Solicitor Barry Sherriff from law firm Norton Rose.  Mr. Sherriff was involved in the working party for the new Workplace Health and Safety Act. 

Timeline for New Workplace Health and Safety Act

It is expected the new laws will come into effect on the 1st of January 2012

What the new Act Does

Removing legal labels and pigeon-holes for duties of care and obligations

Focus on cause and effect instead

All who are involved in work being done will have a duty of care – no loop-holes or gaps

Positive duty of care for officers to exercise due diligence

More emphasis on inclusion of all in practical OHS management

Greater clarity – aimed at work participants rather than lawyers and regulators

Enforcement and sentencing aimed at OHS outcomes, not just punishment

Significant changes in all jurisdictions will include:

Moving from employment as basis for duties, obligations and rights

New positive duty of care for officers, with due diligence defined

Broadened consultation obligations – vertical and horizontal

Broadened union right of entry

Greater protection against discrimination and coercion

Emphasis on graduated enforcement but higher penalties

Easier modification of notices

Increased powers of questioning and reduced rights of individuals

Significant changes in some jurisdictions will include:

No reverse onus of proof (NSW and Qld)

No union prosecution (NSW)

Broader powers of health and safety representatives to issue PINs and direct a work stoppage (NSW, Qld, WA, Tas)

Penalties

There will be a significant increase in penalties for some states:

Categories based on degree of ‘culpability’ and risk/degree of harm
Category 1 – recklessness (knew and made or let it happen)

Cat 1:  Corporation $3million, Officers 600K / 5 years jail, Workers $300K / 5 years jail

Cat 2:  Corporation $1.5 million, Officers $300k, Workiers $150K

Cat 3:  Corporation $500k, Officers $100k, Workers $50k


What you can do to prepare now:

Undertake a legal risk analysis

Undertake a gap analysis

Review, revise and supplement policies and procedures (remember current consultation obligations)

Implement – including training and ongoing review

Review contracts – many will operate under the new laws

Design and implement interface co-ordination processes and plans

Develop effective representation and consultation processes

Develop robust issue resolution processes

Ensure effective processes for union right of entry

Review and revise all aspects of corporate governance in WHS to ensure effective management and ‘due diligence’ compliance

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