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Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000

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1998-1999-2000

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

Occupational Health and Safety (Commonwealth

Employment) Amendment Bill 2000

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Workplace Relations

and Small Business, the Honourable Peter Reith MP)

 

 



OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH

EMPLOYMENT) AMENDMENT BILL 2000

 

OUTLINE

 

The Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000 amends the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) to provide improved protection of the health and safety protection 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:

 

  • 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;

 

  • 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:

 

  • To support the objective of greater consultation, the current institutional mechanisms through which employees have input into health and safety arrangements - the establishment of designated workgroups, selection of health and safety representatives and requirements to establish health and safety committees - are retained:
    • No change is being made to the functions and powers of health and safety representatives;
    • Employers will be required to establish health and safety committees if they normally employ not less than 50 employees.  The manner in which such committees are to be established and operate will be required to be covered in the employers’ safety management arrangements;

 

  • An employee will be able to be represented by an association of employees of which he or she is a member, if it has a principal purpose of protecting the industrial interests of its members and if the employee requests such representation;

 

  • Ensuring that the additional flexibility given to employers and employees to develop appropriate arrangements at the workplace level is balanced by a strong, effective and responsive enforcement regime by:

 

  • Encouraging voluntary compliance;

 

  • 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;

 

  • 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 assist to encourage voluntary compliance with the requirements of the Act;

 

  • 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 (currently $242,000) for a civil breach and 4,500 penalty units (currently $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:

 

  • Health and safety representatives are being given 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;

 

  • Investigators are being the power to give oral directions that a workplace not be disturbed in order to remove an immediate threat to health and safety or 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;

 

  • Enabling investigators to amend or cancel do-not-disturb, prohibition and improvement notices issued by them;

 

  • 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.



REGULATION IMPACT STATEMENT

 

Occupational Health and Safety (Commonwealth Employment) Act 1991

 

EMPLOYER’S DUTY OF CARE/PENALTIES

 

Background

 

The Occupational Health and Safety (Commonwealth Employment) Act 1991 (the OHS 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 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. 

 

This Regulation Impact Statement concerns proposals for amendments to the OHS Act in relation to the duty of care placed upon employers to do whatever is reasonable and practicable to protect the health and safety of employees (and third parties) in the workplace and penalties available in the event of breaches of the Act.

 

The Problem

 

The OHS 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 are however problems with the current provisions that limit the Act’s effectiveness in achieving this outcome.  These are as follows.

 

§   Current provisions of the OHS 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 consultation with their employees, which take account of the circumstances of their own organisation.

 

§   The central place of unions in the current formulation of the OHS Act is inconsistent with the freedom of association principles enshrined in the Workplace Relations Act 1996 (the WR Act).  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’.

 

§   There have been only 8 successful prosecutions under the OHS 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 the Government’s view that this is best achieved through arrangements which are designed to suit the business and culture 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 freedom of association principles enshrined in the WR Act Under the WR Act employees and employers are given more choice and flexibility in reaching mutually rewarding objectives by making workplace agreements with minimal third party intervention.

 

Enforcing compliance with the OHS Act

 

The current means of enforcing compliance with the OHS 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 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 Act is the second lowest of any Australian jurisdiction.

 

Objectives

 

The government’s primary objective is to secure the health and safety at work of employees of the Commonwealth and Commonwealth authorities.

 

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. 

 

Identification of Options

 

Options available for regulating OHS in the Commonwealth jurisdiction include:

 

a)       no change to current provisions, ie 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 within the context of the Government’s freedom of association policy, 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 (ie what matters agencies are required to deal with in the arrangements) and by a more effective compliance regime, with emphasis on civil penalties including non-financial measures, but with existing criminal penalties significantly increased for more serious breaches;

 

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.

 

Impact Analysis

 

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 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.

 

Option a)         No change

 

Costs to GBEs

 

(i)                   continued requirement to comply with detailed prescription of employer duties (compliance costs as reflected in OHS contributions for the whole jurisdiction are currently $4.3 million pa.  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.

 

Benefits to GBEs

 

i)                     no requirement for revision of current processes;

ii)                    continued very low risk of successful prosecution for breaches.

 

Costs to Employees

 

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.

 

Benefits to Employees

 

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 workers’ compensation claims per 100 employees since implementation of the OHS Act.

 

Costs to Government

 

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.

 

Benefits to Government

 

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

 

This option would involve a reduction in the level of detailed prescription of the employers’ duty of care under the OHS Act with respect to the development of health and safety policies and agreements.  This reduction would be balanced by the addition of a requirement that employers have regard to advice from the Commission as to the matters, which should be included in the safety management arrangements.  A more effective compliance regime would be introduced via substantial increases in penalties, introducing civil remedies with criminal prosecution reserved for the most serious cases, and providing for courts to make appropriate preventive or remedial orders.  The primary duty on the employer to take all reasonably practicable steps to protect health and safety at work of the employer’s employees would be retained under this option.

 

Costs to GBEs

 

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.

 

Benefits to GBEs

 

i)                     reduction in compliance burden associated with detailed prescription of duties;

ii)                    opportunity for input through the Commission to development of directions regarding scope of safety management arrangements;

iii)                  greater flexibility to design arrangements adapted to the structure and culture of the business;

iv)                  less adversarial approach to development of arrangements.

 

Costs to Employees

 

i)                     loss of automatic representation by unions in negotiation of OHS agreements;

ii)                    removal of legislative requirement for negotiation of OHS agreement - replaced by requirement to be consulted by employer on safety management arrangements - the effectiveness of consultation will be largely dependent on commitment of employer to the process.

 

Benefits to Employees

 

i)                     freedom of choice as to whether to participate directly or be represented by unions or others in consultations with employers on safety management arrangements;

ii)                    possibility of safer workplaces through access to more flexibility for employers to design safety management arrangements suited to the enterprise;

iii)                  greater possibility of successful prosecution of employer for breaches affecting the employee.

 

Costs to Government

 

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 $40,000;

ii)                    additional resource requirements for expected increase in frequency of prosecutions - additional costs estimated at $200,000 pa.

 

Benefits to Government

 

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.

 

Option c)         Elimination of legislated duty of care

 

Costs to GBEs

 

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.

 

Benefits to GBEs

 

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.

 

Costs to Employees

 

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.

 

Benefits to Employees

 

i)                     none readily identifiable.

 

Costs to Government

 

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.

 

Benefits to Government

 

i)                     none readily identifiable.

 

Consultation

 

Consultation on the possible need for change to OHS Act provisions has taken place in two stages.  First, with union stakeholders, licensed authorities (GBEs) and Commonwealth departments and authorities in mid-September 1999; and subsequently at the Commission 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 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.

 

Conclusion and Recommended Option

 

Option a) would maintain a level of prescription in the OHS 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 culture and business of the individual enterprise.  This flexibility would be balanced by a more effective compliance regime.

 

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.

 

Implementation and Review

 

Implementation of the proposed changes will involve four stages:

i)                     legislative amendments to the OHS Act;

ii)                    agreement and promulgation by the Commission of advice regarding development and implementation of safety management arrangements;

iii)                  preparation of guidance material by Comcare to assist agencies with implementation of new arrangements;

iv)                  development of enterprise-specific safety management arrangements by employers in consultation with employees.

 

It is considered that there will be no net additional cost to employers as a result of the new arrangements, as the cost of development at stage iv) above will be offset by reductions in requirements for negotiations prescribed in the current provisions of the OHS Act.  There may be costs to employers if there are increases in successful actions in respect of breaches of the OHS Act.  This would also involve some costs to the regulator, estimated at $200,000 pa, in enforcing compliance, but existing budgets could be adjusted to absorb any additional costs. 

 

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 four 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 Act 2000 .

 

Clause 2 - Commencement

 

2.                   Clause 2 provides for commencement.

 

3.                   Subclause (1) provides that, subject to this clause, the Act will commence on the 28 th day after the day on which it receives the Royal Assent. 

 

4.         Subclause (2) provides that if item 300 of Schedule 2 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 has commenced before the day on which this Act commences under subclause (1), then item 77 of Schedule 1 to this Bill (which relates to provision of false or misleading information) will not commence.  (See notes on item 77, below.)

 

Clause 3 - Schedule(s)

 

5.                   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.



Schedule 1 - Amendment of the Occupational Health and sAFETY (cOMMONWEALTH eMPLOYMENT) aCT 1991

 

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)

Item 3 - Subsection 5(2) (definition of Comcare )

Item 4 - Subsection 5(1) (definition of Commission )

Item 5 - Subsection 5(1) (definition of Commission )

 

1.2               These items replace obsolete references to the Safety, Rehabilitation and Compensation Act 1988 and the Safety, Rehabilitation and Compensation Commission, with updated references.

 

Item 6 - Subsection 5(1) (definition of contractor )

 

1.3               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. 

 

1.4               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 7 - Subsection 5(1) (subparagraph (a)(i) of the definition of government business enterprise)

 

1.5       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 158.

 

Item 8 - Subsection 5(1)

 

1.6       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 161, below.)

 

Item 9 - Subsection 5(1) (definition of involved union )

 

1.7       This item repeals the definition of involved union and is consequential upon the insertion of a new term representative association in section 5.  (See notes on item 11, below.)

 

Item 10 - Subsection 5(1) (definition of registered union )

 

1.8       This item repeals the definition of registered union and is consequential upon the insertion of a new term representative association in section 5.  (See notes on item 11, below.)

 

Item 11 - Subsection 5(1) (definition of representative association )

 

1.9       This item inserts a new term representative association in section 5, the meaning of which is specified in proposed subsections 5(2A) and (2B).  (See notes on item 14, below.)

 

Item 12 - Subsection 5(1)

 

1.10     This item inserts a new term safety management arrangements which means the safety management arrangements referred to in paragraph 16(2)(d).  (See notes on item 27, below.)

 

Item 13 - Subsection 5(1)

 

1.11     This item inserts the definition of a new term, workplace association representative, into subsection 5(1).  A workplace association representative is defined as an employee at a workplace who is authorised by a representative association to represent the association in that workplace.  The term is defined for the purposes of employee representation in the development of safety management arrangements under subsection 16A(3). 

 

Item 14 - After subsection 5(2)

 

1.12     This item inserts two new subsections concerning the term representative association proposed for insertion in subsection 5(1).  This term is to be used in Part 3 of the Act, Workplace Arrangements, which is to be amended by items 43 to 63.  New subsection 5(2A) defines when an association is a representative association in relation to an employee performing work for their employer at a particular workplace.  New subsection 5(2)(B) defines when an association is a representative association in relation to a designated workgroup at a particular workplace. 

 

1.13     The new term representative association is intended to cover any association of employees which has as a principal purpose the protection and promotion of the industrial interests of its members. 

 

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 repeals and substitutes the subsection, which associates references to the ancillary offences under the Crimes Act 1914 with all references in this Act to contraventions.  The essence of the amendment is to substitute the word ‘breach’ for the word ‘contravention’ wherever it appears in the section.  This is consequential on a distinction arising from the introduction of proposed Schedule 2 to the Act.  (See notes on item 161, below.)  The distinction is between conduct which breaches obligations contained in a provision, referred to as a ‘breach’, and the possible consequences of a breach under Schedule 2, namely the declaration of a contravention under clause 2 of Schedule 2 (which can result in civil penalties) or the finding that a person committed an offence under clause 16 of Schedule 2 (which can result in criminal penalties). 

 

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 an offence and, in relation to the new enforcement mechanisms under the Act, the liability to pay a fine or penalty or to be subject to proceedings for a contravention of the Act.  Commonwealth employers will, however, be subject to the new provisions 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 27, 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 6, above.)

 

Item 23 - Section 15A

 

1.25     This item inserts a new section 15A into the Act to provide that the Criminal Code applies to all offences against this Act.

 

Item 24 - Subsection 16(1) (penalty)

Item 25 - At the end of subsection 16(1)

 

1.26     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 26 - Subsection 16(2)

 

1.27     This item substitutes the word ‘breach’ for the word ‘contravention’ where it appears in the subsection.  (See notes on item 16, above.)

 

Item 27 - Paragraph 16(2)(d)

 

1.28     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. 

 

1.29     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 in order to support compliance with their general duty of care to their employees under section 16.  The new paragraph also provides a non-exhaustive list of areas that their safety management arrangements should cover.

 

Item 28 - Paragraph 16(3)

 

1.30     This item repeals subsection 16(3).  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 27). 

 

Item 29 - After section 16

 

1.31     This item substitutes the word ‘breach’ for the word ‘contravention’ where it appears in the subsection.  (See notes on item 16, above.)

 

Item 30 - After section 16

 

1.32     This item inserts 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 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. 

 

1.33     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.

 

1.34     Proposed subsection 16A(2) allows for employee representation in consultations on the development of safety management arrangements.  If an employee wishes to be represented he or she may be represented by another employee of the employer.

 

1.35     Proposed subsection 16A(3) provides that if an employee wishes to be represented by a representative association, and there is no workplace association representative to represent employees in the workplace, the employee may request to be represented by an officer or an employee of a representative association or a person authorised under the rules of the association.  Subsection 16A(4) clarifies that if a representative union is involved in consultations then this does not prevent employees or other representatives of employees eligible under subsection 16A(2) from being involved in the consultations.

 

1.36     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.

 

1.37     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. 

 

1.38     Proposed subsection 16B(3) provides that the identities of the employee(s) making a request for representation by a representative association remain confidential.

 

1.39     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.

 

1.40     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.

 

1.41     Proposed subsection 16B(6) provides that the certificate is evidence of all the matters contained in it. 

 

Item 31 - Section 17(penalty)

Item 32 - at the end of section 17

Item 33 - Subsection 18(1) (penalty)

Item 34 - at the end of subsection 18(1)

Item 35 - Subsection 18(2) (penalty)

Item 36 - At the end of subsection 18(2)

Item 37 - Subsection 19(1) (penalty)

Item 38 - 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 161, below.)

 

Item 39 - 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 161, below.)  The penalties for breach of this provision are to be contained in Schedule 2. 

 

Item 40 - Subsection 21(1) (penalty)

Item 41 - 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 161, below.) 

 

Item 42 - Paragraph 21(2)(a)

 

1.48     Item 41 contains a consequential amendment related to the proposals in item 30.  It amends paragraph 21(2)(a) to reflect that matters may now be agreed between employers and employees or their representatives.

 

Item 43 - 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(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.

 

1.52     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, a representative association in relation to the employee.

 

Item 44 - After section 24

 

1.53     This item inserts two new sections into the Act, sections 24A and 24B.

 

1.54     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.

 

1.55     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 45 - Subsections 25(4) to (10)

 

1.56     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 46, 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 46 - After section 25

 

1.57     This item inserts new sections 25A, 25B and 25C concerning the elections of health and safety representatives from designated work groups. 

 

1.58     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 (after a reasonable time), the employer must invite nominations for the office of HSR from the employees who are included in the DWG. 

 

·                     Proposed subsection (2) will provide that the Safety, Rehabilitation and Compensation Commission (the Commission) may direct an employer to hold an election for HSR if the employer fails to call for nominations within a reasonable time.

 

·                     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 arrange to conduct an election at the employer’s expense.

 

·                     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) will give the Commission the power to issue directions in relation to the conduct of elections for an HSR and provides that any employer conducting or arranging for the conduct of an election must comply with any relevant directive.

 

1.59     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.

 

1.60     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 47 - Section 26

 

1.61     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.

 

1.62     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).

 

1.63     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 48 - Sub paragraph 28(1)(a)(ii)

 

1.64     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 49 - Section 29

Item 50 - Paragraph 29(1)(b)

Item 51 - Section 29

Item 52 - Section 29

 

1.65     These items substitute the word ‘breach’ for ‘contravention’ in this section and in the appropriate grammatical form.  (See notes on item 16, above.)

 

Item 53 - After subsection 29(3)

 

1.66     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 54 - Subsection 29(8)

 

1.67     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 55 - Subsection 29(9)

Item 56 - After subsection 29(9)

Item 57 - Subsection 29(10))

 

1.68     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 58 - After paragraph 31(1)(b)

 

1.69     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 59 - Subsections 31(2) to (4)

 

1.70     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 60 - Subsection 32(1)

 

1.71     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.

 

1.72     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 a representative association at the request of an employee in the DWG, rather than by an involved union. 

 

Item 61 - After subsection 33(2)

 

1.73     This item adds two new subsections to section 33 to clarify the procedures for the election of deputy health and safety representatives.  The procedures 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), (4), (6) and (7).  Subsections 25A(1) and (2) do not, however, apply, because the election of a deputy is optional and not required for each designated work group.  (See notes on item 46, above.)  An employer is not obliged therefore to invite nominations where a deputy HSR has not been selected. 

 

1.74     This item also clarifies that the exclusion in subsection 25A(5) which makes reference to disqualified HSRs does not apply because the Act only provides for the disqualification of HSRs, not deputy HSRs.

 

Item 62 - Section 34

 

1.75     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. 

 

1.76     Proposed subsection (1) replaces the requirement that there be 50 employees at a particular workplace.  It is proposed instead that an employer that has not less than 50 employees overall in its workforce will be required to establish a health and safety committee. 

 

1.77     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 that particular State or Territory when two conditions are satisfied:

 

a)       the employer has 50 or more employees in a particular State or Territory;

 

b)       the health and safety representative of a designated work group of the employer’s employees in a particular State or Territory gives a reasonable written request to the employer asking for the establishment of the committee.

 

1.78     Proposed subsection (3) states that the establishment 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. 

 

1.79     Proposed subsection (4) 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 63 - Subsection 37(3)

 

1.80     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 64 - Section 39

 

1.81     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.

 

1.82     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. 

 

1.83     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 65 - Subsection 41(1)(b)

 

1.84     This item substitutes the word ‘breach’ for ‘contravention’ in this section.  (See notes on item 16, above.)

 

Item 66 - Subsection 41(2)

 

1.85     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 67 - Subsection 41(2)(b)

 

1.86     This item substitutes the word ‘breach’ for ‘contravention’ in this section.  (See notes on item 16, above.)

 

Item 68 - Subsection 41(2)

Item 69 - Subsection 41(3)

Item 70 - Subsection 41(3)

Item 71 - Subsection 41(4)

 

1.87     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.

 

1.88     These items amend s41 to enable Comcare to have 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 72 - Subsection 41(5)

Item 73 - Subsection 41(5)

Item 74 - Subsection 41(5)

 

1.89     These items are 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. 

 

1.90     The amendments provide that, if requested by an employee, a representative association may make a request to Comcare or the Commission that an investigation be conducted at a workplace where employees who perform work for an employer are members of the association.

 

Item 75 - Subsection 43(1)

Item 76 - Subsection 43(2)

Item 77 - Subsection 43(3)

Item 78 - At the end of section 43

 

1.91     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. 

 

1.92     Item 75 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. 

 

1.93     Items 76 and 77 repeal existing subsections and substitute new subsections based on the new compliance regime for the Act, to be included in Schedule 2.  (See notes on item 161, below.)

 

1.94     Subsection 43(2) presently provides a penalty for failure to comply with a requirement made by an investigator under this section, without reasonable excuse.  Item 76 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 16(2) of new Schedule 2.  (See notes on item 161, below.) 

 

1.95     Subsection 43(3) presently establishes a separate offence of providing false or misleading information in relation to a requirement made by an investigator.  Consistent with current criminal law policy, item 77 replaces this separate offence with a provision establishing that giving false or misleading information constitutes a failure to comply with a requirement by an investigator, that is, it would be a breach of subsection 43(2) as such. 

 

§   Subclause 2(4) of the Bill provides that item 77 will not commence, if item 300 of Schedule 2 to the Criminal Code Amendment Act (Theft, Fraud, Bribery and Related Offences) Act 2000 has already commenced.  This is because the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 , currently before the Parliament, proposes the establishment of a general code in relation to provision of false or misleading information under Commonwealth law, and consequently proposes repeal of current subsection 43(3).  If the subsection has already been repealed, it will not be necessary to amend it as proposed by item 77.

 

1.96     Item 78 inserts a new subsection to section 43 requiring an investigator to return documents or copies of documents if they are no longer needed for the conduct of an investigation, or a decision is made by the investigator not to use the documents in proceedings or the documents have been used in such proceedings. 

 

Item 79 - Subsection 45(1)

Item 80 - At the end of subsection 45(3)

Item 81 - Subsection 45(5) (penalty)

Item 82 - At the end of subsection 45(5)

Item 83 - 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 79 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 80 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 83, below.)

 

1.100   Items 81 and 82 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 161, below.)

 

1.101   Item 83 adds new subsections 45(7) and (8) to that section.

 

1.102   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. 

 

1.103   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 84 - After section 45

 

1.104   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.

 

1.105   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.

 

1.106   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. 

 

1.107   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 161, below.)

 

1.108   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.

 

1.109   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. 

 

1.110   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 85 - At the end of subsection 46(3)

Item 86 - Subsection 46(4) (penalty)

Item 87 - At the end of subsection 46(4)

Item 88 - Subsection 46(6)

Item 89 - Paragraph 46(9)(b)

Item 90- At the end of section 46

 

1.111   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 84 to 89 propose a number of amendments to section 46. 

 

1.112   Item 85 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.

 

1.113   Items 86 and 87 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 161, below).

 

1.114   Item 88 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 90, below.)

 

1.115   Item 89 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. 

 

1.116   Item 90 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.

 

1.117   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 91 - Section 47

Item 92 - Paragraph 47(1)(b)

Item 93 - Section 47

Item 94 - After subsection 47(2)

Item 95 - Subsection 47(6) (penalty)

Item 96 - Subsection 47(6) (penalty)

Item 97 - At the end of subsection 47(6)

Item 98 - Paragraph 47(8)(b)

Item 99 - At the end of section 47

 

1.118   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. 

 

1.119   Items 91 to 93 substitute the word ‘breach’ for ‘contravention’ in this section wherever occurring and in its appropriate grammatical form.  (See notes on item 16, above.)

 

1.120   Item 94 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.

 

1.121   Item 95 substitutes the word ‘breach’ for ‘contravention’ in this section.  (See notes on item 16, above.)

 

1.122   Items 96 and 97 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 161, below.)

 

1.123   Item 98 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.

 

1.124   Item 99 inserts two new subsections into section 47. 

 

1.125   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.

 

1.126   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 100 - After paragraph 48(1)(c)

Item 101 - Before paragraph 48(1)(d)

Item 102 - After paragraph 48(1)(d)

Item 103 - After paragraph 48(1)(f)

Item 104 - Paragraph 48(1)(k)

Item 105 - Before paragraph 48(1)(m)

Item 106 - Paragraph 48(1)(m)

Item 107 - Paragraphs 48(2)(d) and (e)

 

1.127   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. 

 

1.128   Items 100 to 103 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. 

 

1.129   Items 104 to 106 are consequential amendments to reflect the changes to provide for representative associations rather than involved unions under the Act.  The items amend subsection 48 (1) to provide that appeals against decisions taken by investigators may be made by a representative association 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 his or her representative association to make the appeal.

 

1.130   Item 107 is a consequential amendment similar to items 104 and 106.  It provides that a representative association (if requested by an affected employee), rather than an involved union, 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 108 - Section 50

 

1.131   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. 

 

1.132   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 161, below.)

 

Item 109 - Section 52

 

1.133   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.

 

1.134   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 110 - Subsection 54(2)

 

1.135   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, without reasonable excuse, to provide such information or produce such documents.  This item repeals the subsection and substitutes a provision that a person must comply with a requirement to give information or provide documents made by the Commission. 

 

1.136   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 161, below.)  The defence of reasonable excuse is still to be available for criminal liability, under subclause 16(2) of Schedule 2.

 

Item 111 - Section 57

Item 112 - Section 57(penalty)

Item 113 - At the end of section 57

 

1.137   This section provides that a person served with a summons under section 56 must not fail to attend as required by the summons or must not fail to appear and report from day to day unless excused, or released from further attendance, by a member of the Commission.  These items remove the words ‘without reasonable excuse’ from section 57, 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 161, below.)  The defence of reasonable excuse is still to be available for criminal liability, under subclause 16(2) of Schedule 2. 

 

Item 114 - Section 59

Item 115 - Section 59

Item 116 - Section 59(penalty)

Item 117 - At the end of section 59

 

1.138   Section 59 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.  These items remove the words ‘without reasonable excuse’ and ‘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 161, below.)  The defence of reasonable excuse is still to be available for criminal liability, under subclause 16(2) of Schedule 2. 

 

Item 118 - Section 61(penalty)

Item 119 - At the end of section 61

 

1.139   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 161, below.)

 

Item 120 - Section 64 (penalty)

Item 121 - At the end of section 64

 

1.140   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 161, below.)

 

Item 122 - Paragraph 66(1)(a)

 

1.141   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.

 

Item 123 - Section 67

 

1.142   This item replaces an obsolete reference to legislation with the correct reference.

 

Item 124 - Subsection 68(1)

Item 125 - Subsection 68(2)

 

1.143   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.

 

1.144   Item 124 removes the requirement for an employer to provide a report to the Commission from subsection 68(1).  As a consequence item 125 removes the provision to make regulations relating to the making of reports under this section.

 

Item 126 - Subsection 70(7)

 

1.145   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.

 

1.146   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. 

 

1.147   Subsection 70(7) is, therefore, amended to omit ‘offices of the Commission’ and substitute ‘each of the offices of Comcare’.

 

Item 127 - Section 71

Item 128 - Section 71

 

1.148   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 129 - Section 72

Item 130 - Section 72

Item 131 - Section 72 (penalty)

Item 132 - At the end of section 72

 

1.149   Section 72 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.

 

1.150   These items amend section 72 by removing the words ‘without reasonable cause, wilfully and recklessly’ and ‘which the person knew or ought reasonably to have known was protective equipment or a safety device’.  These elements of a criminal offence are to be provided for in Part 2 of Schedule 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 161, below.)

 

Item 133 - Section 73 (penalty)

Item 134 - At the end of section 73

 

1.151   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 161, below.)

 

Item 135 - Paragraph 74(1)(c)

Item 136 - Paragraph 74(1)(d)

Item 137 - After paragraph 74(1)(d)

Item 138 - Paragraph 74(1)(f)

Item 139 - Subparagraph 74(1)(g)

 

1.152   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. 

 

1.153   Item 135 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 27, above.)

 

1.154   Item 136 replaces the word ‘measures’ with the word ‘initiatives’ in paragraph 74(1)(d).

 

1.155   Item 137 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.

 

1.156   Item 138 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. 

 

1.157   Item 139 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 140 - Subparagraph 75(c)(iii)

 

1.158   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 84, above.)  The Commission will now be required to include statistics on directions issued under section 45A in its annual report. 

 

Item 141 - Subsection 76(1) (penalty)

Item 142 - At the end of subsection 76(1)

Item 143 - Subsection 76(2)

 

1.159   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. 

 

1.160   Items 141 and 142 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 161, below.)

 

1.161   Item 143 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 161, below.)

 

Item 144 - Subsections 77(1) and (2)

Item 145 - Subsection 77(3)

Item 146 - Subsection 77(3)

 

1.162   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.

 

1.163   Item 144 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 representative associations 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 representative associations in relation to DWGs, must be in writing.

 

1.164   Items 145 and 146 are consequential amendments to reflect the new structure of the section and the change from involved unions to representative associations. 

 

Item 147 - After section 77

 

1.165   This item inserts new sections 77A and 77B which will provide relevant courts with the power to grant injunctions and make remedial orders in relation to both civil and criminal proceedings for alleged or potential breaches of the Act. 

 

1.166   New section 77A(1) 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.

 

1.167   Under new subsections 77A(2) to (5) the court will be able 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.

 

1.168   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. 

 

1.169   New subsections 77A(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. 

 

1.170   New section 77B will allow a court to make certain remedial orders that it considers appropriate, to rectify a state of affairs. 

 

1.171   New subsection 77B(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.

 

1.172   New subsection 77B(2) will have a similar operation to subsection (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.  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.

 

Item 148 - Subsection 78(1)

Item 149 - Subsection 78(2)

Item 150 - Subsection 78(3)

Item 151 - Subsection 78(4)

 

1.173   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 152 - Section 79

Item 153 - Paragraph 79(a)

 

1.174   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. 

 

1.175   Item 152 omits the words ‘civil proceedings’ wherever they occur in section 79 and substitute ‘(other than proceedings under Part 1 of Schedule 2)’.  This amendment is necessary as a consequence of amendments to the compliance elements of the Act.  (See notes on item 161, below.)

 

1.176   Item 153 substitutes the word ‘breach’ for ‘contravention’ in paragraph 79(a).  (See notes on item 16, above.)

 

Item 154 - Section 80

Item 155 - Subsection 80(2)

 

1.177   Section 80 provides for the effect of a contravention of the Act or regulations upon contracts of employment.

           

1.178   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 156 - Paragraphs 82(1)(c)(d) and (e)

Item 157 - Paragraph 82(1)(h)

 

1.179   Section 82 provides for the making of regulations for the Act.  These items repeal paragraphs 82(1)(c), (d), 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 158 - Schedule (heading)

Item 159 - Schedule 1

Item 160 - Schedule  1

 

1.180   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.

 

1.181   Item 158 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 161, below.)

 

1.182   Items 159 and 160 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). 

 

1.183   Item 159 inserts the following bodies into the Schedule:

·         Australian Government Solicitor

·         Defence Housing Authority. 

 

1.184   Item 160 will omit the following bodies from the Schedule:

·         ANL Limited

·         Health Insurance Commission

·         Housing Loans Insurance Corporation

·         Pipeline Authority

·         Telstra Corporation Limited.

 

1.185   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 161 - At the end of the Act

 

1.186   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. 

 

1.187   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

 

New clause 1 - Courts that may exercise jurisdiction under this Part

 

1.188   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

 

1.189   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

 

1.190   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

 

1.191   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?

 

1.192   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

 

1.193   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)

 

1.194   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.

 

1.195   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

 

1.196   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)

 

1.197   This clause provides a general defence where a person acted honestly and ought fairly to be excused.

 

New clause 14 - Undertakings

 

1.198   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 15 - Criminal jurisdiction not conferred on Federal Court

 

1.199   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 16 - Offences resulting in death or serious bodily harm

 

1.200   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 general defence of reasonable excuse.

 

New clause 17 - Other offences

 

1.201   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 general defence of reasonable excuse. 

 

New clause 18 - Maximum penalties

 

1.202   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

 

1.203   This part contains transitional provisions related to the amendments to employers’ duties contained in Part 1 of Schedule 1.

 

Item 162 - Definitions

 

1.204   This item contains definitions used in the transitional provisions in this division.

 

Item 163 - Safety management arrangements

 

1.205   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 164 - Occupational health and safety policies

 

1.206   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 27, above.)

 

Item 165 - Agreements between employers and involved unions

 

1.207   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

 

1.208   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 166 - Definitions

 

1.209   This item contains definitions used in the transitional provisions in this division.

 

Item 167 - Designated work groups

 

1.210   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 168 - Consultations

 

1.211   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 169 - Health and safety representative

 

1.212   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 170 - Elections

 

1.213   This item will allow for the completion of an election of 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 171 - Applications under section 32

 

1.214   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 60, above.)

 

Item 172 - Health and safety committees

 

1.215   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 such time as safety management arrangements, under paragraph 16(2)(d), are developed by employers in consultation with their employees.  (See notes on items 62 and 156, above.)

 

1.216   Subitem (2) provides that, in the event that a committee that was required under section 34 to be formed prior to commencement of the amendments in the Schedule, was not in fact established, an employer must write to the Safety, Rehabilitation and Compensation Commission (the Commission) seeking directions relating to the establishment of a health and safety committee.  When directions are received the employer must establish a committee in accordance with those directions as soon as is practicable.

 

1.217   Subitem (3) provides that committees which have continued in existence under subitem (1) or have been established in accordance with the Commission’s direction in subitem (2), continue in existence until safety management arrangements have been developed. 

 

1.218   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 subitem (1) or the employer establishes a committee in respect of its employees in accordance with subitem (2).

 

DIVISION 3 - MISCELLANEOUS PROVISIONS

 

1.219   This Division contains application provisions related to amendments in Part 1 not affected by the preceding Divisions.

 

Item 173 - Time of effect of notices

 

1.220   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 53 and 94, above.)

 

Item 174 - Reports of investigation

 

1.221   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 109, above.)

 

Item 175 - Notification of accidents and dangerous occurrences

 

1.222   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 124 and 125, above.)

 

Item 176 - Annual Reports

 

1.223   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 139, above.)

 

Item 177 - Regulations prescribing penalties

 

1.224   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 156, above.)