Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2002

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and

Workplace Relations, the Honourable Tony Abbott MP)

 

 



OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (EMPLOYEE INVOLVEMENT AND COMPLIANCE) BILL 2002

 

OUTLINE

 

The Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002 amends the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) to provide improved protection of the health and safety of Commonwealth employees at work by:

 

§ Revising the provisions relating to the employer’s duty of care to provide a greater focus on occupational health and safety outcomes, including by removing unnecessary prescription in the Act:

 

o There is no change to the employer’s primary duty to take all reasonably practicable steps to protect the health and safety at work of the employer’s employees;

 

o Prescriptive provisions requiring an employer to develop an occupational health and safety policy and agreement are being replaced with a requirement for the employer to develop safety management arrangements in consultation with the employer’s employees.  When developing or varying safety management arrangements, employers will be required to have regard to any advice of the Safety, Rehabilitation and Compensation Commission (the Commission) on the matter;

 

§ Recognising the primacy of direct employer and employee relationships, by facilitating genuine consultations between employers and employees through a more direct relationship, in part by removing mandatory third party intervention.  This will ensure that employers and employees are free to develop suitable health and safety arrangements which take account of the circumstances of their own enterprise and therefore accommodate their needs at the enterprise level:

 

o To support the objective of greater consultation, the current institutional mechanisms through which employees have input into health and safety arrangements - designated workgroups, health and safety representatives and health and safety committees - are retained:

§ No change is being made to the functions and powers of health and safety representatives (however a technical amendment proposed will give health and safety representatives the power to request an investigation of an alleged contravention of the Act where a provisional improvement notice has been issued but not complied with);

§ Employers will be required to establish health and safety committees if they normally employ not less than 50 employees.  An employer will also be required to establish a committee where there is normally not less than 50 employees at a workplace and either a health and safety representative gives or a majority of employees in the workplace make a written request to an employer to establish a committee.  The manner in which such committees are to be constituted and operate will be required to be covered in the employers’ safety management arrangements; and

§ The number of employer representatives on a health and safety committee will not be able to be greater than the number of employee representatives.

 

o An employee will be able to be represented by a registered organisation (including an organisation within the meaning of the Workplace Relations Act 1996 ) or an association of employees of which he or she is a member, if it has a principal purpose of protecting and promoting employees’ interests in matters concerning their employment, if the employee requests such representation;

 

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

 

o Encouraging voluntary compliance;

 

o Providing for civil penalties as far as possible, reserving criminal penalties for more serious breaches of the Act where there has been a death or serious bodily harm.  Criminal penalties are also being retained for offences which are more appropriately dealt with in the criminal justice system, such as contempt of the Commission or failing to attend before the Commission as a witness;

 

o Providing for a wider range of remedies under the Act to ensure more effective protection of the health and safety of Commonwealth employees at work, namely:

§ Injunctions, both prohibitory and mandatory, to achieve compliance with the Act;

§ Remedial orders to enable effective action to be taken to remedy the effect of a breach of the Act; and

§ Enforceable undertakings.  Comcare is being given the power to accept a written undertaking relating to the fulfilment of an obligation under the Act from a person who is required to fulfil that obligation.  This will be available as an alternative to prosecution and thereby encourage voluntary compliance with the requirements of the Act;

 

o Substantially increasing levels of penalties.  For example, currently the maximum penalty under the Act is $100,000 for a breach of the employer’s duty of care.  This is being increased to 2,200 penalty units ($242,000) for a civil breach and 4,500 penalty units ($495,000) for a criminal breach;

 

§ Revising the annual reporting requirements of Commonwealth agencies under the Act to provide a greater focus on outcomes rather than process; and

 

§ Making technical amendments to various provisions of the Act to correct deficiencies or otherwise improve the operation of these provisions, for example:

 

o Giving health and safety representatives the power to request an investigation of an alleged contravention of the Act where a provisional improvement notice has been issued but not complied with;

 

o Giving investigators the power to give oral directions that a workplace not be disturbed in order to remove an immediate threat to health and safety or to allow an inspection at the workplace.  This power is in addition to the current power to give a written notice not to disturb a workplace;

 

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

 

o Enabling Comcare to exercise some powers currently conferred on the Commission, such as providing occupational health and safety advice to Departments and Commonwealth authorities and referring employers, employees and contractors to experts. 

 

Financial impact statement

 

The proposals contained in the Bill are budget neutral.



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(CE) Act) provides a legal basis for the protection of the health and safety of Commonwealth employees in Departments, Statutory Authorities and Government Business Enterprises (GBEs).  The OHS(CE) Act imposes responsibilities on employers, employees and others (including private businesses which are manufacturers, suppliers and installers of plant, equipment and substances used by Commonwealth employees).

 

The Commonwealth has adopted an approach to the protection of the health and safety of employees which is more effectively self-regulating at the enterprise level.  This includes prescribing general duties of care for employers, workers and others and the establishment of arrangements at workplaces which involve employees in the development and implementation of health and safety arrangements.  A similar approach is taken in all Australian jurisdictions and in most comparable jurisdictions internationally.

 

Comcare undertakes the role of regulator under the OHS(CE)Act.  This role includes investigations of incidents.  A Planned Investigation Program is also conducted by Comcare each year, usually focussing on an agency’s  policies and practices.  Comcare also provides a range of information and education assistance to Commonwealth employers and employees.  A range of sanctions is available where an investigation reveals a breach of a duty under the Act, including the issuing of Improvement and Prohibition Notices.  In the case of Government Business Enterprises, a criminal prosecution may be brought.

 

The OHS(CE) Act is supported by regulations addressing specific areas of health and safety risk and providing guidance to employers in meeting their duty of care under the Act.  Further guidance and assistance is provided through non-binding Codes of Practice on specific issues.

 

This Regulation Impact Statement concerns proposals for amendments to the OHS(CE) Act in relation to the duty of care placed upon employers to do whatever is reasonably practicable to protect the health and safety of employees (and third parties) in the workplace and the penalties available in the event of breaches of the Act. The changes to the employer’s duty of care are closely related to proposed changes to the workplace arrangements provisions of the OHS(CE) Act.  The amendments to the employer’s duty of care and penalties provisions therefore form part of a package of amendments to the OHS(CE) Act which will ensure that Commonwealth employers and employees can fully co-operate in the development of arrangements which address issues at the particular workplace and that they will be supported by a responsive and effective enforcement regime. This will result in improved health and safety outcomes.

 

The Problem

 

The OHS(CE) Act, in conjunction with the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) seeks to limit the human and financial cost of injury and illness in the workplace. There have been improvements in the Commonwealth’s occupational health and safety performance since the OHS(CE) Act commenced.  This could be attributed to a number of factors, including changes in the composition of the workforce. Commonwealth employers are also generally aware of their obligations under the OHS(CE) Act and willing to comply with them.

 

Nonetheless there are  problems with the current provisions that limit the Act’s effectiveness in achieving continuous improvement in health and safety outcomes:

 

§   Current provisions of the OHS(CE) Act outlining the employer’s duty of care in relation to their employees are oriented towards process rather than outcomes and restrict the flexibility of employers to design safety management arrangements, in direct consultation with all their employees, which take account of the circumstances of their own organisation;

 

§   The central place of unions in the current formulation of the OHS(CE) Act is inconsistent with the need to involve all employees in consultations on health and safety issues at the workplace. In essence, it is only possible for employers and employees to engage in direct consultation on health and safety in the workplace where there is no “involved union”; and

 

§   There have only been 8 successful prosecutions under the OHS(CE) Act since its commencement  and there have been considerable time lags between incident and conviction (between 3 and 4 years in some cases).

 

Prescriptive processes for duties associated with the development of health and safety policies and agreements

 

The employer’s duty of care in relation to their employees is set out in s.16 of the OHS(CE) Act.  Subsection 16(1) sets out the primary duty on the employer to take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.  The remaining subsections in s.16 set out more detailed requirements for fulfilling this duty.

 

More prescriptive requirements are laid down in paragraph 16(2)(d) and subsection 16(3). Paragraph 16(2)(d) requires an employer to develop, in consultation with any involved unions, an occupational health and safety policy.  Subsection 16(3) provides that the occupational health and safety policy must provide for the making of an agreement between the employer and involved unions that provides appropriate mechanisms for continuing consultation on OHS matters and any other agreed matters.

 

These duties are the same for all employers, regardless of size, though they are often more appropriate for larger, more strongly unionised workforces.  Effective protection of workplace health and safety requires input from the employees to policies and processes.  However, it is this Government’s view that this is best achieved through arrangements which are designed to suit the requirements of the specific enterprise.

 

Furthermore, it is only possible for employers and employees to engage in direct consultation on health and safety in the workplace where there is no “involved union”.  An involved union is defined to mean:

 

(a)        in relation to an employee of an employer - a registered union of which the employee is a member, being an employee who is qualified to be such a member by virtue of the work the employee performs as an employee of the employer; or

(b)        in relation to a designated work group - a registered union of which an employee included in the group is a member, being an employee who is qualified to be such a member by virtue of the work the employee performs as an employee included in the group.

 

This is inconsistent with the  principles enshrined in the Workplace Relations Act 1996 ( the WR Act) whereby employees and employers are given more flexibility in reaching mutually rewarding objectives with minimal third party intervention.

 

Enforcing compliance with the OHS(CE) Act

 

The current means of enforcing compliance with the OHS(CE) Act is limited to a regime of criminal penalties and lacks the flexibility required to deal with the full range of potential breaches of the Act.  The delay and difficulty in obtaining convictions for breaches of the OHS(CE) Act may be attributed in part to the fact that the criminal standard of proof is required for a prosecution to succeed.  The level of penalties currently available under the OHS(CE) Act is the second lowest of any Australian jurisdiction.  

 

Objectives

 

The government’s primary objective is to secure the health and safety at work of employees of the Commonwealth, Commonwealth authorities (including Government Business Enterprises).

 

In this context, the government is seeking to achieve a balanced regulatory framework which focuses on health and safety outcomes and minimises the level of prescription of safety management arrangements in the workplace.  To balance the move to a more flexible approach to the employer’s duty of care, the government proposes to provide for a more effective compliance regime.

 

Identification of Options

 

Options available for regulating OHS in the Commonwealth jurisdiction include:

 

a)       no change to current provisions, i.e. continued legislative prescription of detailed employer duties, prescribed role for unions in consultative processes, inflexible provisions for enforcement of compliance;

 

b)       streamlining the legislated prescription of employer duties, particularly to provide more flexibility for agencies to develop their own safety management arrangements suitable to the requirements of the particular enterprise  balanced by a requirement for employers to have regard to advice issued by the Safety, Rehabilitation and Compensation Commission (the Commission) as to the scope of safety management arrangements (i.e. what matters agencies are required to deal with in the arrangements) and by a more effective compliance regime, with an emphasis on civil penalties, including non-financial measures, but with existing  penalty levels significantly increased.;

 

c)       elimination of legislated prescription of employer duties, with reliance on employer education and workplace inspection by the regulator (Comcare) and also reliance on the common law duty to provide competent staff, safe plant and equipment, a safe system of work, and effective instruction, training and supervision of employees.

 

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(CE) Act, which is inconsistent with the provisions of the WR Act.  Under Options b) and c), this prescribed role would be eliminated though, in accordance with freedom of association principles, employees would have the option of being represented by unions in consultations.

 

There may be less specific impacts than those identified below, when consideration is given to potential effects on society as a whole (for example, possible increased pressure on hospital resources due to injury of workers under an unregulated regime) or on other Australian jurisdictions (through possible pressure for change along lines parallel to those proposed by the Commonwealth).  These potential effects have not been considered in detail in view of the lack of specifically identifiable impacts in these areas and the relatively clear judgement that can be made on the basis of the impacts on major stakeholders.

 

Option a)        No change

 

The primary duty on the employer to take all reasonably practicable steps to protect the health and safety at work of the employer’s employees would be retained under this option.

 

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 were $5 million for 2000/01.  Only a proportion of this amount would be attributable to GBEs;

ii)         limited costs associated with the development of OHS policies and the negotiation and renegotiation of OHS agreements;

iii)        restriction on flexibility to design safety management arrangements to suit the enterprise;

iv)        continued adversarial approach to safety management due to management of safety issues within an industrial relations context.

 

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 claims per 100 employees since implementation of the OHS(CE) Act (although this could be due to a range of factors, including changes in the composition of the Commonwealth public sector workforce).

 

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

 

The primary duty on the employer to take all reasonably practicable steps to protect the health and safety at work of the employer’s employees would be retained under this option.

 

This option would involve a reduction in the level of detailed prescription of the employer’s duty of care under the OHS(CE) Act with respect to the development of health and safety policies and agreements.  Instead, employers would be required to develop safety management arrangements in consultation with employees and their representatives.  The reduction in prescriptive legislative requirements would be balanced by new provisions giving guidance to employers as to what issues safety management arrangements might address and requiring employers to have regard to advice from the Commission as to the matters which should be included in the safety management arrangements.

 

While employers would not be compelled to comply with advice from the Commission in relation to safety management arrangements, they may find themselves in breach of their fundamental duty of care to their employees if they choose to ignore the Commission’s advice and develop safety management arrangements which do not meet their fundamental duty of care. The development of appropriate safety management arrangements will require employers to identify and assess the risks at their particular workplace and develop strategies to control them.  Employers will have to have regard to such matters as the nature and type of work undertaken in their enterprise and the level of skills which employees need to perform their tasks safely.  Under this option, therefore, employers will be required to focus on achieving effective health and safety outcomes, not just follow prescribed processes. Restrictions on the ability of employers to involve all their employees in consultations on the development of safety management arrangements will be removed.

 

A more effective compliance regime would also be introduced through the encouragement of voluntary compliance but with new and effective measures to punish wrongdoers where this becomes necessary.  Voluntary compliance with the OHS(CE) Act would be assisted through the insertion of new Objects in the Act encouraging employers, employees and others to comply with their obligations under the Act and indicating that effective remedies are available if such obligations are not met.  New powers would also be created for the regulator to take action before employees are injured or killed via new remedies such as enforceable undertakings, injunctions and remedial orders.  Where punishment becomes necessary, this would be achieved through the introduction of civil penalties as far as possible, with criminal prosecution reserved for the most serious cases.  Penalty levels would also be significantly increased. The new penalty provisions would make it easier for proceedings to be brought against wrongdoers and ensure that appropriate penalties are imposed.. This approach is therefore focused on prevention rather than punishment, through implementing new measures to improve compliance (in particular the proposed enforceable undertakings) with punishment only as a last resort. 

 

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)                  greater incentive to comply with the employer’s duty of care through new provisions encouraging compliance;

iii)                reduced injury rates;

iv)                reduced costs of workplace injuries;

v)                  lower workers’ compensation insurance costs;

vi)        opportunity for input through the Commission to development of advice regarding the matters that should be covered by safety management arrangements;

vii)       greater flexibility to design arrangements adapted to the structure and needs of the particular business and workplace;

viii)      less adversarial approach to development of arrangements;

 

Costs to Employees

 

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

 

Benefits to Employees

 

i)                    removal of current restrictions on the ability of all employees to directly participate in resolution of health and safety issues at the workplace in consultations with employers and as a health and safety representative or as a member of a health and safety committee;

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

iii)                possibility of safer workplaces through:

a)   access to more flexibility for employers to design safety management arrangements suited to the enterprise;

b)   new remedies such as enforceable undertakings and injunctions which enable the regulator to take action before accidents occur;

iv)        greater possibility of successful prosecution of employers for breaches affecting employees.

 

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 $50,000;

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

 

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;

iii)                continuing downward trend in injuries.

 

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(CE) Act provisions has taken place in two stages.  First, with union stakeholders, licensed authorities and Commonwealth departments and authorities in mid-September 1999; and subsequently at the SRCC meeting on 30 September 1999.

 

In the unions’ view, any additional flexibility should be accompanied by adequate protection, and they did not support significant reduction of the current level of prescription.  They generally welcomed suggestions to increase the level of penalties.

 

Licensed authorities took the view that introduction of a requirement for a minimum scope of safety management arrangements would increase the level of prescription in the OHS(CE) Act, though there is no indication in the proposals for change that this would be the case.  They were conscious of the need to update the level of penalties and raised no significant objections to the suggestions in this area.

 

Commonwealth departments and authorities welcomed proposals to reduce the level of prescription and introduce flexibility to develop arrangements suited to individual organisations.  The overall sentiment was in favour of proposals in respect of the employers’ duty of care.

 

The Commission, which is a tripartite body representing employers, employees and the regulator, agreed that a balanced program of change, along the lines of Option b) described above, would be desirable.

 

Conclusion and Recommended Option

 

Option a) would maintain a level of prescription in the OHS(CE) Act which requires review in the context of the more commercial environment in which GBEs are now operating.  While there are benefits to employees under current arrangements, those arrangements are overly prescriptive, expensive to regulate and encourage an unnecessarily adversarial industrial environment.

 

Option b) provides a more flexible approach to employers’ duties.  The expectation is that it would lead to safer workplaces through the availability of more freedom to design safety management arrangements which are specific to the needs  of the individual enterprise.  This flexibility would be balanced by a more effective compliance regime.

 

On 7 December 2000, the Government introduced the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000 (the OHS(CE)A Bill) which proposed amendments to the employer’s duty of care and penalties provisions in the OHS(CE) Act reflecting the approach adopted in option (b).  The OHS(CE)A Bill was considered by the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee in 2001.  In its submission to the Committee, the ACTU opposed the proposed removal of the current mandatory role for unions in the OHS(CE) Act.  In the report of the Senate Committee dated May 2001, Opposition Senators also expressed concerns about the proposed removal of the mandatory role for unions.  The amendments to the penalty provisions were generally supported.  The OHS(CE)A Bill lapsed when Parliament was prorogued prior to the 2001 election.

 

Option c) would provide no identifiable benefit to either the employee or the regulator, and the costs to employers might well outweigh the potential benefits.  Deregulation would send an undesirable message about the Government’s commitment to maintaining safe and healthy workplaces for Commonwealth employees.

 

Option b) is the preferred option.  On the assumption that GBEs will take advantage of the available flexibility, it is expected that the changed arrangements will contribute materially to achievement of the Government’s objectives described above.  Concerns expressed by the ACTU and Opposition Senators about the OHS(CE)A Bill have been taken into account in developing the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002.  This Bill therefore now contains further safeguards to protect the rights of employees and ensure that they can be represented by unions if they wish. 

 

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 the scope of safety management arrangements

iii)        preparation of non-binding 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(CE) Act.  There may be costs to employers if there are increases in successful breaches of the OHS(CE) Act.  This would also involve costs to the regulator, estimated at $200,000 pa, in enforcing compliance. 

 

The effectiveness of the proposed new provisions will be reviewed annually in the context of the Comparative Performance Monitoring system agreed by the Workplace Relations Ministers’ Council.  This provides for analysis of outcome-focused measures of prevention performance to be collected and compared across all Australian jurisdictions.  It will not involve collection of data additional to that which is already required by the system.

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.         The Bill, when passed, will be known as the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Act 2002 .

 

Clause 2 - Commencement

 

2.         Clause 2 specifies when the various provisions of the Act are proposed to commence.  Sections 1 to 3 and anything in the Act not elsewhere covered by the table in this clause will commence on the day on which the Act receives the Royal Assent.  The amendments in Schedule 1 of the Bill will commence on the 28 th day after the day on which it receives the Royal Assent.  Subclause 2(2) is a technical provision which provides that any additional information included in Column 3 of the table will not form part of the Act.

 

Clause 3 - Schedule(s)

 

3.         This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule.  Other items (eg transitional provisions) have effect according to their terms.





 

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)

 

1.2       This item replaces an obsolete reference to the Safety, Rehabilitation and Compensation Act 1988 with an updated reference .

 

Item 3 - Subsection 5(1)

 

1.3       This item inserts a new term, association , into subsection 5(1).   An association is defined as an association of employees, a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment. The term association is used as part of the definition of the new term employee representative in subsection 5(1). (See notes on item 8, below).

 

Item 4 - Subsection 5(2) (definition of Comcare )

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

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

 

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

 

Item 7 - Subsection 5(1) (definition of contractor )

 

1.5       The current definition of ‘contractor’ is limited to natural persons.  This item repeals and substitutes the definition, with the effect that a ‘contractor’, for the purposes of section 14 of the Act, will include an incorporated body, in addition to a natural person. 

 

1.6       Section 14 of the Act relates to workplaces that are controlled by contractors for construction or maintenance purposes and provides for the Act to apply to such workplaces in a different and limited way, subject to any relevant regulations.  This amendment will make that section more effective, by enabling it to apply to situations where a workplace is controlled by a contractor which is an incorporated body.



 

Item 8 - Subsection 5(1)

 

1.7       This item inserts the definition of a new term, employee representative, into subsection 5(1).  An employee representative is defined as a registered organisation of employees, or an association, of which the employee is a member.  The Act currently provides a number of roles for “involved unions”, including, for example, roles in the development of occupational health and safety policies pursuant to the current paragraph 16(2)(d) and involvement in respect of the election of health and safety representatives and the establishment and operation of health and safety committees.  The term, employee representative , will replace current references in the Act to an involved union.  (See notes on items 11 and 12, below.) 

 

Item 9 - Subsection 5(1) (subparagraph (a)(i) of the definition of government business enterprise)

 

1.8       This item amends a reference to the existing Schedule to the Act, which is to become Schedule 1 when a new Schedule 2 is inserted.  This item is consequential upon item 155.

 

Item 10 - Subsection 5(1)

 

1.9       This item inserts a definition of involved to specify when a person is involved in a breach of a provision of the Act, for the purposes of the new provisions in relation to breaches to be included in new Schedule 2.  (See notes on item 158, below.)

 

Item 11 - Subsection 5(1) (definition of involved union )

 

1.10     This item repeals the definition of involved union and is consequential upon other amendments which replace references to an involved union with references to an employee representative .  (See notes on item 8, above.) 

 

Item 12 - Subsection 5(1)

 

1.11     This item inserts the definition of a new term, registered organisation , into subsection 5(1).  A registered organisation is defined as an organisation within the meaning of the Workplace Relations Act 1996 or a body that is declared by regulations under the Act to be a registered organisation.  This term is used in the definition of the new term employee representative in subsection 5(1).  (See notes on item 8, above.)  

 

Item 13 - Subsection 5(1) (definition of registered union )

 

1.12     This item repeals the definition of registered union and is consequential upon the insertion of a new term registered association in section 5 and the repeal of the current term involved union .  (See notes on items 8 and 11, above.)

 

Item 14 - Subsection 5(1)

 

1.13     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 26, below.)

 

Item 15 - Subsection 5(3A)

 

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

 

Item 16 - Subsection 5(6)

 

1.15     This item replaces references to a ‘contravention’ of the Act in this subsection with a ‘breach’ wherever they occur in the section.  This is consequential on a distinction between conduct which breaches obligations contained in a provision of the Act which may result in the declaration of a contravention (which can result in civil penalties) under the proposed Schedule 2 to the Act or the finding that a person committed an offence under clause 16 of Schedule 2 (which can result in criminal penalties).  (See notes on item 158, below.) 

 

Item 17 - Subsections 11(2) and (3)

 

1.16     This item replaces the existing subsections 11(2) and 11(3). 

 

1.17     The amendments will maintain the immunity of the Commonwealth and Commonwealth authorities against prosecution for a criminal offence.   Commonwealth employers will, however, be liable to proceedings for a declaration of contravention by a court and to pay a pecuniary penalty pursuant to an order of the court.  The Commonwealth and Commonwealth authorities will also be liable to the other new civil orders concerning enforceable undertakings, remedial orders and injunctions.

 

1.18     The amendments will also provide that Commonwealth employees will not have immunity against prosecution and will, therefore, be subject to all the enforcement mechanisms under the Act.  Government business enterprises and their employees will continue to be subject to all the enforcement mechanisms under the Act.

 

Item 18 - Subsection 12(1)

 

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

 

Item 19 - Paragraph 12(1)(b)

 

1.20     Paragraph 12(1)(b) currently provides that one of the functions of the Commission is to advise employers, employees, or contractors either on its own initiative or on request, on occupational health and safety matters affecting such employers, employees or contractors.

 

1.21     This item amends paragraph 12(1)(b) so that the Commission is no longer required to provide information on request, but may still do so on its own initiative.  The effect of this amendment is that in future, Comcare will respond to requests for information or advice from Department or statutory authorities. 

 

Item 20 - At the end of paragraph 12(1)(b)

 

1.22     This item contains consequential amendments related to the new safety management arrangements.  (See notes on items 26, below.)  The function of the Safety, Rehabilitation and Compensation Commission (the Commission) to advise employers and employees under paragraph 12(1)(b) will be expanded to indicate that ‘occupational health and safety matters’ include matters to be covered by employers’ safety management arrangements.

 

Item 21 - At the end of subsection 12(1)

 

1.23     This item amends subsection 12(1) to add a new paragraph (h).  The effect of the amendment is to give the Commission power to issue directions on the conduct of elections for health and safety representatives under proposed section 25A.

 

Item 22 - At the end of subsection 14(1)

 

1.24     This item adds a note to refer to the definition of ‘contractor’ in subsection 5(1) to bring attention to the broader definition of contractor which now includes a body corporate for the purposes of this section.  (See notes on item 7, above.)

 

Item 23 - Subsection 16(1) (penalty)

Item 24 - At the end of subsection 16(1)

 

1.25     These items repeal the penalty for breach of this subsection, which is to be located in new Schedule 2 to the Act, and inserts a note that a person who breaches this section may be subject to civil action or criminal prosecution under Schedule 2.

 

Item 25 - Subsection 16(2)

 

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

 

Item 26 - Paragraph 16(2)(d)

 

1.27     Section 16 of the Act provides that an employer has a general duty to protect the health and safety at work of their employees and sets out some minimum requirements that must be complied with. 

 

1.28     This item repeals paragraph 16(2)(d), which requires an employer to develop an occupational health and safety policy with involved unions or other persons the employer considers appropriate.  In its place a new paragraph will be substituted, that imposes an obligation on the employer to develop safety management arrangements in consultation with their employees.  The new paragraph provides an exhaustive list of areas that safety management arrangements must cover.

 

Item 27 - Subsection 16(3)

 

1.29     This item repeals subsection 16(3) and substitutes it with a new subsection.  The development of an occupational health and safety agreement is replaced by a requirement on the employer to develop safety management arrangements in consultation with the employer’s employees (refer to item 26).  Proposed subsection 16(3) provides some guidance (in the form of a non-exhaustive list) about certain additional matters which might be covered by safety management arrangements (above the minimum requirements set out in proposed paragraph 16(2)(d)).  These matters include a written occupational health and safety policy in respect of the employer and employees, arrangements relating to risk identification and assessment, the making of agreements relating to consultation on occupational health and safety matters and such other matters as agreed between the employer and their employees and employee representatives and occupational health and safety training.

 

Item 28 - Subsection 16(5)

 

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

 

Item 29 - After section 16

 

1.31     This item inserts new sections 16A and 16B.  These sections provide that an employer must have regard to advice of the Safety, Rehabilitation and Compensation Commission (the Commission) when developing or varying safety managements arrangements that are required under the proposed paragraph 16(2)(d).  Section 16B also provides employees with protection for confidentiality by providing that a representative association may apply to the Chief Executive Officer (CEO) of Comcare for a certificate where an employee has requested the association’s involvement in consultations with the employer but does not wish to be identified. 

 

1.32     Proposed subsection 16A(1) provides that an employer must have regard to any advice of the Commission which may have been given to that particular employer, or employers generally, in developing or varying safety management arrangements.

 

1.33     Proposed subsection 16A(2) allows for employee representation in consultations on the development or variation of safety management arrangements.  If an employee requests to be represented in consultations, they may be represented by another employee of the employer or an employee representative.

 

1.34     Subsection 16A(4) clarifies that if an employee is represented in consultations then this does not prevent the employee, an employee mentioned in paragraph (2)(a) or any other employee of the employer from being involved in consultations.

 

1.35     Proposed subsection 16B(1) provides for the CEO of Comcare to issue a certificate on application by a representative association if satisfied that an employee has chosen to be represented by a representative association in consultations with their employer.

 

1.36     Proposed subsection 16B(2) provides that the application of a representative association to the CEO of Comcare to represent employee(s) in consultation with the employer in the course of developing or varying safety management arrangements must be in the prescribed form. 

 

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

 

1.38     Proposed subsection 16B(4) provides that the certificate has a finite period of effectiveness.  The period will end at the earlier of two times, when the CEO of Comcare considers that each of the employees identified in the certificate has requested that they no longer wish the representative association to represent them, or in any event at the end of the 12 month period commencing when the certificate was issued.

 

1.39     Proposed subsection 16B(5) provides that if the certificate ceases to have effect under any of the circumstances outlined then the CEO of Comcare must notify the representative association, and the employer of the employees who were being represented, in writing.

 

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

 

1.41     Proposed subsection 16B(7) provides that the CEO of Comcare may delegate his or her power to issue a certificate for an employee representative to be involved in consultations, to the deputy CEO of Comcare.  Such delegation, if made, must be made in writing.

 

Item 30 - Section 17 (penalty)

Item 31 - At the end of section 17

Item 32 - Subsection 18(1) (penalty)

Item 33 - At the end of subsection 18(1)

Item 34 - Subsection 18(2) (penalty)

Item 35 - At the end of subsection 18(2)

Item 36 - Subsection 19(1) (penalty)

Item 37 - At the end of subsection 19(1)

 

1.42     These items modify the sections and subsections mentioned in a similar way.  The penalties mentioned in each section are repealed and a note is added that civil action may be taken or a criminal prosecution may apply for breaches of the section or subsection, the penalties for which are to be contained in Schedule 2.  (See notes on item 158, below.)



 

Item 38 - Subsection 20(1)

 

1.43     This item repeals the existing subsection 20(1) including the penalty for contravention of the section. 

 

1.44     The amendments are proposed to ensure that where a person is erecting or installing any plant in a workplace for the use of employees at work they must take all reasonably practicable steps to ensure that the process of erection or installation, as well as the plant itself, is safe for employees who use the plant and does not constitute a risk to the health of employees at the workplace. 

 

1.45     Proposed paragraph 20(1)(b) will extend the protection of subsection 20(1) to all employees at the workplace, not just those who use the plant. 

 

1.46     This item also inserts a note that breaches of this subsection may incur civil action or criminal prosecution as provided in Schedule 2.  (See notes on item 158, below.)  The penalties for breach of this provision are to be contained in Schedule 2. 

 

Item 39 - Subsection 21(1) (penalty)

Item 40 - At the end of subsection 21(1)

 

1.47     These items repeal the penalty for contraventions and insert a note that civil action may be taken or a criminal prosecution may apply for breaches of the section or subsection, the penalties for which are to be contained in Schedule 2.  (See notes on item 158, below.) 

 

Item 41 - Paragraph 21(2)(a)

 

1.48     Item 41 contains a consequential amendment related to the proposals in item 29.  It amends paragraph 21(2)(a) to reflect that matters may now be agreed between employers and employees or their representatives.

 

Item 42 - Subsections 24(1) to (3)

 

1.49     This item amends subsections 24(1), (2) and (3) to establish a more streamlined process when an employee requests his or her employer to establish a designated workgroup (DWG) or vary a DWG already established.

 

1.50     Proposed subsection 24(1) provides that an employee of an employer may request the employer to establish a DWG in respect of its employees or vary a DWG that is already established. 

 

1.51     Proposed subsection 24(1A) provides that, where requested by an employee, an employee representative may request an employer to establish a DWG in respect of its employees or vary a DWG that is already established.

 

1.52     Proposed subsection 24(2) provides that an employer is required to enter into consultations with its employees on establishing or varying a DWG within 14 days of receiving the request.

 

1.53     Proposed subsection 24(3) will enable an employer to initiate a process to vary a DWG by entering into consultations with the health and safety representative and, if an employee so requests, an employee representative  in relation to the employee.

 

Item 43 - After section 24

 

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

 

1.55     Proposed section 24A provides that consultations on designated work groups (DWGs) are consultations to develop safety management arrangements as required under paragraph 16(2)(d).  However, such consultations are not to be taken as sufficient to fulfil, on their own, the requirement to develop safety management arrangements.

 

1.56     Proposed section 24B will require that the employer maintain an up-to-date list containing details of all DWGs comprised of employees performing work for the employer, the categories of employees included in those DWGs and ensure that the list is available for inspection by the employees and investigators.  Categories of employee must be described in the list. 

 

Item 44 - Subsections 25(4) to (10)

 

1.57     Section 25 currently provides for the selection and election of health and safety representatives (HSRs).  This item repeals subsections 25(4) to (10) and substitutes a new subsection 25(4).  The effect of this amendment is to remove the existing subsections relating to the election of HSRs.  (See notes on item 45, below.)  Subsection 25(4) provides that where an employee is unanimously selected to be a health and safety representative, he or she must inform the employer of the employees of the designated work group of which he or she has been selected to be the HSR.  A note is also added that the heading to section 25 is to be replaced by the heading ‘Selection of health and safety representatives’. 

 

Item 45 - After section 25

 

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

 

1.59     Proposed section 25A sets out the processes to be followed by the employer if there is a vacancy in the office of health and safety representative (HSR) of a designated work group (DWG).

 

·          Proposed subsection (1) will provide that where the office of HSR in a DWG is vacant, and a replacement has not been chosen by employees unanimously (within a reasonable time after the vacancy occurs), the employer must invite nominations for the office of HSR from all of the employees who are included in the DWG. 

 

·          Proposed subsection (2) will provide that if the office of HSR is vacant and the employer has not invited nominations within a further reasonable time, that is not less than 6 months after the vacancy occurred, the Safety, Rehabilitation and Compensation Commission (the Commission) may direct an employer to invite nominations.

 

·          Proposed subsection (3) will provide that if more than one employee nominates as HSR for a DWG at the close of the nomination period, the employer must conduct, or arrange for the conduct of, an election at the employer’s expense.

 

·          Proposed subsection (3A) will provide that an election conducted or arranged  to be conducted by an employer, must be conducted in accordance with regulations if this is requested by a majority of employees normally in the DWG or by 100 employees normally in the DWG, whichever is the lesser.

 

·          Proposed subsection (4) will allow a person to be taken to be elected as HSR if he or she is the only nominee at the close of the nomination period.

 

·          Proposed subsection (5) will provide that an employee who has been disqualified under s.32 may not be a candidate in the election for an HSR. 

 

·          Proposed subsection (6) will provide that all employees in the DWG may vote in the election for an HSR.

 

·          Proposed subsection (7) provides that any employer conducting or arranging for the conduct of an election must comply with any directive issued by the Commission.  (See notes on item 21, above.)

 

1.60     Proposed section 25B will replace subsection 25(10) with a simpler requirement that employers must prepare and keep up to date a list of all HSRs and ensure that the list is available for inspection at all reasonable times by their employees and by investigators.

 

1.61     Proposed section 25C will require an employer to notify employees in a DWG of a vacancy in the office of HSR, or the selection of an HSR, within a reasonable time.

 

Item 46 - Section 26

 

1.62     This item repeals section 26 and substitutes three new subsections 26(1) to (3) to reflect that the safety management arrangements governing a workplace will specify the term of office of the health and safety representative (HSR) of a designated work group.  It also provides for the selection of an HSR in the event of a casual vacancy under a new section 26A.

 

1.63     Proposed section 26 provides that HSRs hold office for the period specified in the organisation’s safety management arrangements.  An HSR who has been elected is eligible for further terms of office.  If a period is not specified in the safety management arrangements, the term of office will be 2 years subject to sections 26A (when a casual vacancy arises) and 31 (when an HSR resigns).

 

1.64     Proposed section 26A provides for the term of office in the event of a casual vacancy occurring when an HSR ceases to hold office as an HSR before the term for an HSR has expired.  If a casual vacancy occurs more than 6 months before the expiry of the retiring HSR’s term, the person selected to fill the vacancy will hold office for the remainder of the term.  If the casual vacancy occurs less than six months before the expiry of the retiring HSR’s term, the person selected to fill the vacancy will hold office for the remainder of that term and for the next term of office.

 

Item 47 - Sub paragraph 28(1)(a)(ii)

 

1.65     This item is proposed to allow Comcare, in addition to the Safety, Rehabilitation and Compensation Commission, to receive requests from health and safety representatives for investigations to be conducted at the workplace. 

 

Item 48 - Section 29

Item 49 - Paragraph 29(1)(b)

Item 50 - Section 29

Item 51 - Section 29

 

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

 

Item 52 - After subsection 29(3)

 

1.67     This amendment provides that a provisional improvement notice issued under subsection 29(3) has effect as soon as it is given to the relevant person under subsection 29(2)(the person responsible for the breach) or subsection 29(3) (a person reasonably presumed to be for the time being in charge of the activity undertaken by the employer).

 

Item 53 - Subsection 29(8)

 

1.68     This item is proposed to allow Comcare to receive requests from responsible persons and others, for investigations into matters which are the subject of a provisional improvement notice issued under this section.

 

Item 54 - Subsection 29(9)

Item 55 - After subsection 29(9)

Item 56 - Subsection 29(10)

 

1.69     These items are proposed to allow a health and safety representative to make a request to Comcare to investigate a matter that is the subject of a provisional improvement notice in the event that a responsible person, or any other person to whom a notice has been given, has not complied with the notice or has not made a request for an investigation under subsection 29(8). 

 

Item 57 - After paragraph 31(1)(b)

 

1.70     This item contains a technical amendment to add proposed paragraph 31(1)(ba), which clarifies that a person ceases to be a health and safety representative if the designated work group is varied under subsection 24(6) and such a variation results in the membership of the group being different from what it was before the variation.

 

Item 58 - Subsections 31(2) to (4)

 

1.71     This item replaces subsections 31(2), (3) and (4), concerning the resignation of a health and safety representative (HSR), with a simpler provision that an HSR may resign by notice in writing delivered to the employer of the employees included in the designated workgroup and must notify the employees included in the designated workgroup of the resignation.

 

Item 59 - Subsection 32(1)

 

1.72     Section 32 deals with the disqualification of health and safety representatives.  This item is consequential to other amendments in the Bill concerning representation of employees in provisions relating to the employer’s duty of care and workplace arrangements.

 

1.73     This item amends subsection 32(1) to provide that applications for the disqualification of a health and safety representative for a designated work group (DWG) can be made by an employee representative at the request of an employee in the DWG. 

 

Item 60 - After subsection 33(2)

 

1.74     This item adds three new subsections to section 33 to clarify the procedures for the election of deputy health and safety representatives.  Proposed subsection (2A) will provide that if an election for a deputy health and safety representative is to be held, the employer must invite nominations from all of the employees in the designated work group (DWG).  The procedures for election are based on those for the election of health and safety representatives (HSRs) under section 25 and the procedures for election of HSRs proposed under subsections 25A(3) to (7).  Subsections 25A(1) and (2) do not, however, apply, because the election of a deputy is optional and not required for each DWG.  (See notes on item 45, above.)  

 

1.75     This item also clarifies that the provisions relating to resignation etc. and disqualification of a health and safety representative, in sections 31 and 32 of the Act, apply to a deputy health and safety representative in the same way as they apply to a HSR.

 

Item 61 - Section 34

 

1.76     This item inserts a new section 34 in relation to health and safety committees.  The intention is to create a less prescriptive mechanism for the establishment and operation of health and safety committees. 

 

1.77     Proposed subsection (1) provides that an employer that normally has not less than 50 employees overall in its workforce will be required to establish a health and safety committee. 

 

1.78     Proposed subsection (2) provides that, in addition to the requirement in proposed subsection (1), an employer must establish a health and safety committee in respect of employees performing work for the employer in a particular workplace if:

a) the number of the employees in the workplace is normally not less than 50; and

 

b) either:

(i) a health and safety representative of a designated work group of employees performing work for the employer in the workplace gives a written request to the employer seeking the establishment of  a committee; or

 

(ii) a majority of the employees in the workplace give a written request to the employer seeking establishment of a committee

 

1.79     Proposed subsection (3) states that the constitution and administrative operation of the committees established under subsections (1) and (2) are to be in accordance with the safety management arrangements applying to the employer’s employees.  However, proposed subsection (4) provides that notwithstanding any provision made for the membership of health and safety committees in safety management arrangements, the number of members of a health and safety committee who are employer representatives must not be greater than the number of employee representatives.

 

1.80     Proposed subsection (5) emphasises that sub committees of a health and safety committee, and other committees concerned with occupational health and safety, may be established by an employer in consultation with the employees or any other persons.  This amendment clarifies that the fact that a committee has already been established under section 34 does not prevent the establishment of these additional committees.

 

Item 62 - Subsection 37(3)

 

1.81     This amendment substitutes Comcare for the Safety, Rehabilitation and Compensation Commission as the appropriate body, in addition to an investigator, to which a health and safety representative (HSR) or a supervisor can make a request for an investigation, where there is a disagreement between the HSR and a supervisor about whether sufficient action has been taken to remove an immediate threat to the health and safety of employees, or whether a direction by an HSR for employees to cease work, under subsection 37(1)(b), was necessary. 

 

Item 63 - Section 39

 

1.82     This item repeals section 39 and substitutes two new provisions, sections 38A and 39, conferring powers on Comcare which are currently exercised by the Commission.

 

1.83     New section 38A will allow Comcare to advise employers, employees or contractors, either on its own initiative or on request, on occupational health and safety matters affecting those employers, employees or contractors. 

 

1.84     New section 39 will allow Comcare to refer persons seeking advice about an occupational health and safety matter to experts, where Comcare considers that a person other than a member of the staff of, or a consultant to, Comcare has special knowledge or experience relevant to the request for advice.

 

Item 64 - Subsection 41(1)(b)

 

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

 

Item 65 - Subsection 41(2)

 

1.86     This item amends subsection 41(2) to provide that either Comcare or the Safety, Rehabilitation and Compensation Commission may direct an investigator who is not a member of the staff of Comcare to conduct an investigation under this section. 

 

Item 66 - Paragraph 41(2)(b)

 

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

 

Item 67 - Subsection 41(2)

Item 68 - Subsection 41(3)

Item 69 - Subsection 41(3)

Item 70 - Subsection 41(4)

 

1.88     Section 41 of the OHS Act enables the Commission to direct investigators to conduct investigations concerning compliance with the OHS Act, contravention of the OHS Act and accidents or dangerous occurrences in the performance of work.

 

1.89     These items amend section 41 to enable Comcare to have a similar role to the Commission in the conduct of investigations under this section.  They also provide that although the Commission can revoke a direction to conduct an investigation by Comcare, Comcare does not have the power to revoke such a direction made by the Commission. 

 

Item 71 - Subsection 41(5)

 

1.90     The amendment in this item is  consequential to other amendments in the Bill concerning representation of employees in provisions relating to the employer’s duty of care and workplace arrangements, and the new role for Comcare in the conduct of investigations under this section. 

 

1.91     The proposed subsection 41(5) will provide that an employee representative, if requested by an employee, may make a request to Comcare or the Commission  that an investigation be conducted at a workplace at which the employee performs work for the employer.

 

Item 72 - Subsection 43(1)

Item 73 - Subsection 43(2)

Item 74 - Subsection 43(3)

 

1.92     These items propose a number of amendments to section 43 to clarify the obligations in the section to provide assistance and information in relation to the conduct of investigations by an investigator. 

 

1.93     Item 72 amends subsection 43(1) so that if an investigator requests documents in accordance with this subsection a person is required to give the inspector documents, or copies of documents, requested in connection with the conduct of the investigation. 

 

1.94     Item 73 repeals the existing subsection and substitutes a new subsection based on the new compliance regime for the Act, to be included in Schedule 2.  (See notes on item 158, below.)

 

1.95     Subsection 43(2) presently provides a penalty for failure to comply with a requirement made by an investigator under this section.  Item 73 replaces this with a provision that compliance is mandatory, and a note that breach may result in civil action or criminal liabilities.  The defence of reasonable excuse is still to be available, under subclause 18(2) of new Schedule 2.  (See notes on item 158, below.) 

 

1.96     Item 74 will repeal and substitute subsection 43(3).  The proposed subsection will require an investigator to return documents or copies of documents if they are no longer needed for the conduct of an investigation and either, a decision is made by the investigator not to use the documents in proceedings or the documents have been used in such proceedings. 

 

Item 75 - Subsection 45(1)

Item 76 - Paragraph 45(3)(b)

Item 77 - At the end of subsection 45(3)

Item 78 - Subsection 45(5) (penalty)

Item 79 - At the end of subsection 45(5)

Item 80 - At the end of section 45

 

1.97     Section 45 allows an investigator to give a written direction to a person who is, for the time being, in charge of the workplace that a workplace not be disturbed in order to remove threats to health and safety or conduct inspections, examinations or tests.  These items propose a number of amendments to section 45 including the insertion of new subsections 45(7) and (8).

 

1.98     Item 75 inserts, after the words ‘person who is’, the words ‘or who may reasonably be presumed to be’ to assist in the operation of the subsection.

 

1.99     Item 76 makes a technical amendment to the punctuation at the end of subsection 45(3)(b) consequential on the amendment made in Item 77.

 

1.100   Item 77 amends subsection 45(3) to provide an end point until which notices of directions given by inspectors under this section must be displayed, that time being when the directions expire, are revoked or varied.  (See notes on item 80, below.)

 

1.101   Items 78 and 79 repeal the penalty for a contravention of subsection 45(5) and insert a note that an employer who breaches subsection 45(5) may be subject to civil action or criminal prosecution under Schedule 2 where the penalty for this breach is to be provided.  (See notes on item 158, below.)

 

1.102   Item 80 adds new subsections 45(7) and (8) to that section.

 

1.103   Proposed subsection 45(7) will allow an investigator to revoke or vary a do-not-disturb direction by giving written notice to a person who is in charge, or may reasonably be presumed to be in charge of the workplace. 

 

1.104   Proposed subsection 45(8) sets out the procedure for notification of a variation of a do-not-disturb direction.  A notice of variation of a direction must contain the text of the original direction and any variation to the original direction to enable readers of the notice to ascertain what the original directions were and how they have been changed.  The person to whom the notice is given must display it in the workplace that is the subject of the notice and an investigator must take all reasonable steps to give notification of the variation and its terms to those people notified of the original direction.

 

Item 81 - After section 45

 

1.105   Section 45 presently provides that an investigator may give a written do-not-disturb notice to the person in control of a workplace, plant, substance or thing.  In certain circumstances, however, there may be no possibility of delivering a written notice quickly.  This item proposes new section 45A, to address this problem by giving an investigator power to give oral directions that a workplace or thing not be disturbed.

 

1.106   New subsection (1) will provide that an oral do-not-disturb direction can be given to a person in charge of a workplace, or who is reasonably presumed to be in charge of a workplace, where the investigator considers on reasonable grounds that the direction is necessary to remove an immediate threat to the health and safety of any person or to allow inspection and testing in the workplace, or the investigator is satisfied that there is not adequate time to give a written notice under section 45.

 

1.107   New subsection (2) will provide that an oral direction remains in force for no longer than the investigator considers reasonably necessary but must end no longer than 48 hours after the direction is given. 

 

1.108   New subsection (3) will require an employer to ensure that the direction is complied with and provides that a breach of this subsection may be subject to civil action or criminal prosecution, the penalties for which are contained in Schedule 2.  (See notes on item 158, below.)

 

1.109   New subsection (4) will provide that an oral direction ceases to have effect at the earliest of a number of possible times.  They are either the end of the specified period under subsection (2), the time when the oral direction is revoked under subsection (5) or where a written direction is made under section 45 on the same investigation and subject as the oral direction.

 

1.110   New subsection (5) will provide that an oral direction may be revoked by informing the person who is at the time in charge of the workplace that the direction is revoked. 

 

1.111   New subsection (6) will provide that an oral direction made under this section cannot be renewed or varied or another oral direction issued in respect of the same matters for which an oral direction under this section has already been issued.  This restriction is to facilitate the giving of written directions to follow up oral directions and to emphasise that oral directions are only to be given in special circumstances.

 

Item 82 - At the end of subsection 46(3)

Item 83 - Subsection 46(4) (penalty)

Item 84 - At the end of subsection 46(4)

Item 85 - Subsection 46(6)

Item 86 - Paragraph 46(9)(b)

Item 87- At the end of section 46

 

1.112   Section 46 presently confers a power on an investigator to issue a prohibition notice if, after conducting an investigation, an investigator forms an opinion it is reasonably necessary to issue the notice to remove an immediate threat to the health and safety of any person.  Items 81 to 86 propose a number of amendments to section 46. 

 

1.113   Item 82 inserts a new paragraph 46(3)(c) to provide that a prohibition notice issued under this section by an investigator must also specify a period which the investigator considers on reasonable grounds is sufficient to enable compliance.

 

1.114   Items 83 and 84 repeal the penalty for a breach of the section and insert a note that breaches of this subsection may incur civil action or criminal prosecution as provided in Schedule 2.  The penalties for breach of these provisions are to be contained in Schedule 2.  (See notes on item 158, below).

 

1.115   Item 85 repeals subsection 46(6), and substitutes a new subsection specifying when a prohibition notice ceases to have effect.  A prohibition notice will now cease to have effect when an investigator notifies an employer that the employer has taken adequate action to remove the threat to health or safety that caused the prohibition notice to be issued or, additionally, when it is revoked under subsection 46(11).  (See notes on item 87, below.)

 

1.116   Item 86 provides an end point to the requirement to display prohibition notices in the affected workplace by adding that the notice must be displayed at all times until the notice has expired or has been revoked or varied. 

 

1.117   Item 87 adds two new subsections to section 46.  Proposed subsection 46(11) will allow an investigator to revoke or vary a prohibition notice by giving written notice to the person who is, or may reasonably presumed to be, in charge of the activity in respect of which the original notice was issued.

 

1.118   Proposed subsection 46(12) will set out a number of requirements to be fulfilled when a prohibition notice is varied.  The new notice will have to set out the text of the original notice and the variation to it and specify the time for which the variation will have effect.  The employer will have to display the new notice in a prominent place in, or near, the workplace affected by the notice until it is revoked or varied.  The employer and the investigator will each have to take all reasonable steps to give a copy of the new notice to each person to whom they gave copies of the original notice. 

 

Item 88 - Section 47

Item 89 - Paragraph 47(1)(b)

Item 90 - Section 47

Item 91 - After subsection 47(2)

Item 92 - Section 47

Item 93 - Subsection 47(6) (penalty)

Item 94 - At the end of subsection 47(6)

Item 95 - Paragraph 47(8)(b)

Item 96 - At the end of section 47

 

1.119   Section 47 presently confers a power on an investigator to issue improvement notices if, after conducting an investigation, an investigator forms an opinion that a person is contravening a provision of the Act or regulations or has contravened a provision of the Act or regulations and is likely to contravene that provision again.  These items make a number of amendments to section 47. 

 

1.120   Items 88 to 90 substitute the word ‘breach’ for ‘contravention’ in this section wherever occurring and in its appropriate grammatical form.  (See notes on item 16, above.)

 

1.121   Item 91 inserts a new subsection 47(2A), which provides that an improvement notice has effect from the time it is given to a person under this section.

 

1.122   Item 92 substitutes the word ‘breach’ for ‘contravention’ in this section.  (See notes on item 16, above.)

 

1.123   Items 93 and 94 repeal the penalty for a contravention of subsection 47(6) and insert a note that an employer who breaches subsection 47(6) may be subject to civil action or criminal prosecution, the penalties for which are to be contained in Schedule 2.  (See notes on item 158, below.)

 

1.124   Item 95 provides an endpoint to the requirement to display improvement notices in the affected workplace by providing that the notice must be displayed at all times until the notice has expired or it has been revoked or varied.

 

1.125   Item 96 inserts two new subsections into section 47. 

 

1.126   New subsection 47(10) will allow an investigator to revoke or vary an improvement notice by giving written notice to the person in charge of the activity, or the person reasonably presumed to be in charge of the activity, in respect of which the original notice was issued.

 

1.127   New subsection 47(11) contains notification requirements and the form for a variation to an improvement notice.  The new notice will have to set out the text of the original notice and the variation to it and specify the time for which the variation will have effect.  The employer will have to display the new notice in a prominent place in, or near, the workplace affected by the notice until it is revoked or varied.  The employer and the investigator will each have to take all reasonable steps to give a copy of the new notice to each person to whom they gave copies of the original notice. 

 

Item 97 - After paragraph 48(1)(c)

Item 98 - Before paragraph 48(1)(d)

Item 99 - After paragraph 48(1)(d)

Item 100 - After paragraph 48(1)(f)

Item 101 - Paragraph 48(1)(k)

Item 102 - Before paragraph 48(1)(m)

Item 103 - Paragraph 48(1)(m)

Item 104 - Paragraphs 48(2)(d) and (e)

 

1.128   Section 48 presently provides for appeals that can be made against various decisions taken by investigators while conducting investigations.  These items make a number of amendments to section 48. 

 

1.129   Items 97 to 100 insert new paragraphs into section 48(1).  They are consequential amendments to allow appeals against the new powers of investigators to revoke or vary directions not to disturb a workplace, prohibition notices and improvement notices under the proposed amendments to sections 45, 46, and 47 or to make an oral direction under section 45A. 

 

1.130   Items 101 to 103 are consequential amendments to reflect the changes to provide for employee representatives under the Act.  The items amend subsection 48 (1) to provide that appeals against decisions taken by investigators may be made by an employee representative  in relation to a designated workgroup, at the request of an employee working in an affected designated workgroup.  If there is no designated workgroup, an affected employee may request an employee representative to make the appeal.

 

1.131   Item 104 is a consequential amendment similar to items 101 and 103.  It provides that an employee representative  (if requested by an affected employee), may appeal under subsection 48(2) against a decision of an investigator to cancel a notice under section 29, or a decision by an investigator that an employer has taken adequate action to remove a threat to safety under section 46. 



Item 105 - Section 50

 

1.132   Section 50 presently prohibits a person from tampering with or removing notices issued by investigators that must be displayed under various sections of the Act. 

This item repeals section 50 and inserts a new section which maintains the obligation not to remove or tamper with notices and, in addition, reflects amendments to the requirements to the display of notices, copies of notices or variations to notices under the relevant subsections.  The requirement not to tamper or remove a notice stands until the notice or direction to which it relates has expired, is revoked or a new notice is issued following the variation of the notice or direction. 

 

1.133   This item also repeals the penalty for a contravention of the section and inserts a note that a person who breaches this section may now be subject to criminal prosecution, the penalty for which is contained in Schedule 2.  (See notes on item 158, below.)

 

Item 106 - Section 52

 

1.134   Division 3 of Part 4 of the Act (sections 52 to 67) provides for inquiries by the Commission that may lead to the reporting to Parliament of employers who breach the requirements of the legislation.  Section 52 of the Act provides that the Division does not apply to a GBE.

 

1.135   Section 53 provides that where an investigator has conducted an investigation, the investigator must prepare a written report and provide it to the Commission.  The Commission must give a copy of the report to the employer together with any comments it may wish to make.  This item amends section 52 to ensure that section 53 applies to Government business enterprises (GBEs).  It is intended that section 53, but no other part of Division 3 of Part 4 of the Act, will apply to GBEs.

 

Item 107 - Subsection 54(2)

Item 108 - Subsection 54(3)

 

1.136   Section 54 confers a power upon the Safety, Rehabilitation and Compensation Commission (the Commission) to obtain information and documents relevant to a report of an investigation under subsection 53(1) in circumstances where it has reason to believe that a person is capable of giving information or producing documents.  Subsection 54(2) provides that a person must not refuse or fail to provide such information or produce such documents.  Subsection 54(3) provides that subsection (2) does not apply if the person has a reasonable excuse. These  items repeal subsections (2) and (3) and insert a provision which provides  that a person must comply with a requirement to give information or provide documents made by the Commission. 

 

1.137   This item also repeals the penalty for contravention of this subsection and inserts a note that a person who breaches this section may be subject to criminal prosecution, as set out in Schedule 2 to the Act.  (See notes on item 158, below.)  The defence of reasonable excuse is still to be available for criminal liability, under subclause 20(2) of Schedule 2.

 



Item 109 - Section 57(1) (penalty)

Item 110 - At the end of subsection 57(1)

Item 111 -  Subsections 57(2) and (3)

 

1.138   Subsection 57(1) provides that a person served with a summons under section 56 must not (a) fail to attend as required by the summons or (b) must not fail to appear and report from day to day. Subsection 57(2) provides that subsection (1) does not apply if the person has a reasonable excuse. Subsection 57(3) also provides that paragraph (1)(b) does not apply if a person has been excused or released from further appearance by a member of the Commission.  These items repeal subsections (2) and (3), repeal the penalty for contravention of this subsection and insert a note that a person who breaches this section may be subject to criminal prosecution, the penalty for which is contained in Schedule 2 to the Act.  (See notes on item 158, below.)  The defence of reasonable excuse is still to be available for criminal liability, under subclause 20(2) of Schedule 2. 

 

Item 112 - Section 59

Item 113 - Subsection 59(1) (penalty)

Item 114 - At the end of subsection 59(1)

Item 115 - Subsection 59(2)

 

1.139   Subsection 59(1) presently provides that a person appearing as a witness must not refuse or fail to be sworn in, to answer questions or to produce documents when appearing as a witness before the Commission.  Subsection 59(2) provides that subsection (1) does not apply if the person has a reasonable excuse.  These items repeal subsection (2) and remove the words  ‘refuse or’ from the section to clarify a person’s obligations under this section.  In addition, these items repeal the penalty for contravention of this section and insert a note that a person who breaches this section may be subject to criminal prosecution, the penalty for which is contained in Schedule 2 to the Act.  (See notes on item 158, below.)  The defence of reasonable excuse is still to be available for criminal liability, under subclause 20(2) of Schedule 2. 

 

Item 116 - Section 61(penalty)

Item 117 - At the end of section 61

 

1.140   Section 61 proscribes certain actions which constitute contempt of the Safety, Rehabilitation and Compensation Commission.  These items repeal the penalty for contravention of this section and insert a note that a person who breaches this section may be subject to criminal prosecution, the penalty for which is contained in Schedule 2 to the Act.  (See notes on item 158, below.)

 

Item 118 - Section 64 (penalty)

Item 119 - At the end of section 64

 

1.141   Section 64 provides that an employer must not act in a prejudicial manner to an employee because the employee has appeared, proposes to appear, as a witness at an inquiry, or because the employee has given, or proposes to give, evidence at an inquiry.  These items repeal the penalty for contravention of this section and insert a note that a person who breaches this section may be subject to a civil action the penalty for which is contained in Schedule 2 to the Act.  (See notes on item 158, below.)

 

Item 120 - Paragraph 66(1)(a)

 

1.142   Section 66 provides that where the Commission forms the opinion that an employer has failed to comply with a direction given under section 45 or a notice issued under section 46 or 47, it may prepare and give to the Minister a report to this effect.  Where such a report is given, the Minister must lay a copy of the report before each House of the Parliament within 15 sitting days of receipt of the report.  This item contains a consequential amendment related to the proposal to allow the issuing of oral directions under section 45A.

 

Item 121 - Section 67

 

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

 

Item 122 - Subsection 68(1)

Item 123 - Subsection 68(2)

 

1.144   Section 68 provides for the notification and reporting of accidents and dangerous occurrences.  These items are proposed to amend section 68 to remove the need for employers to provide both a notice and a report to the Safety, Rehabilitation and Compensation Commission (the Commission) when an accident or death occurs in the workplace.

 

1.145   Item 122 removes the requirement for an employer to provide a report to the Commission from subsection 68(1).  As a consequence item 123 removes the provision to make regulations relating to the making of reports under this section.

 

Item 124 - Subsection 70(7)

 

1.146   Subsection 70(7) currently provides that the Safety, Rehabilitation and Compensation Commission must at all times ensure that there is available for inspection at its offices an up to date copy of each document incorporated in a code of practice under subsection 70(3).  Inspection of such documents at the offices of Comcare is preferable because Comcare’s offices are more readily accessible.

 

1.147   This item amends the Act to enable documents incorporated in codes of practice under subsection 70(3) to be inspected at the offices of Comcare. 

 

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

 

Item 125 - Section 71

Item 126 - Section 71

 

1.149   Section 71 provides for the use of codes of practice as evidence in proceedings under the Act where it is alleged that a person contravened a provision of the Act or regulations in relation to which an approved code of practice was in effect at the time of the alleged contravention or failure.  These items substitute the word ‘breach’ for ‘contravention’ in this section in wherever occurring and in its appropriate grammatical form.  (See notes on item 16, above.)

 

Item 127 - Section 72 (penalty)

Item 128 - At the end of section 72

Item 129 - Subsection 72(2)

 

1.150   Subsection 72(1) prohibits a person from interfering or rendering ineffective, or requiring or otherwise causing another person to interfere with or render ineffective, protective equipment or safety devices in the workplace.  Subsection 72(2) provides that subsection (1) does not apply if a person has a reasonable excuse.

 

1.151   These items amend section 72 by repealing subsection (2).  In addition, these items repeal the penalty for a contravention of the section and insert a note that a person who breaches section 72 may be subject to criminal prosecution, the penalty for which is contained in Schedule 2 to the Act.  (See notes on item 158, below.) The defence of reasonable excuse is still to be available for criminal liability, under subclause 18(2) of Schedule 2.

 

Item 130 - Section 73 (penalty)

Item 131 - At the end of section 73

 

1.152   Section 73 prohibits an employer from levying or permitting to be levied on their employees any charge in respect of any thing done or provided in accordance with the Act or the regulations in order to ensure the health and safety of the employees at work.  These items repeal the penalty for a contravention of section 73 and insert a note that an employer who breaches section 73 may be subject to civil action, the penalty for which is contained in Schedule 2 to the Act.  (See notes on item 158, below.)

 

Item 132 - Paragraph 74(1)(c)

Item 133 - Paragraph 74(1)(d)

Item 134 - After paragraph 74(1)(d)

Item 135 - Paragraph 74(1)(f)

Item 136 - Subparagraph 74(1)(g)

 

1.153   These items make a number of amendments to the matters that are to be included in annual reports that are required to be submitted by Commonwealth Departments or Commonwealth authorities under section 74.  The purpose of the amendments is to streamline the annual reporting requirements by reducing some of the prescriptive aspects of reporting under the section and making it more outcome focussed.

 

1.154   Item 132 deletes paragraph 74(1)(c) removing prescriptive elements to be included in an annual report and specific elements that will be no longer relevant as a consequence of amendments to the Act.  An employer will now be required to include in an annual report details of the safety management arrangements in a workplace required under paragraph 16(2)(d).  (See notes on item 26, above.)

 

1.155   Item 133 replaces the word ‘measures’ with the word ‘initiatives’ in paragraph 74(1)(d).

 

1.156   Item 134 inserts a new paragraph 74(1)(d) to require that health and safety outcomes, including the impact on injury rates of employees achieved as a result of initiatives taken under paragraph 74(1)(d), or previous initiatives, must be included in the annual report.

 

1.157   Item 135 substitutes a new simplified paragraph (f) that provides that the annual report must include details of investigations and notices given to an employer under sections 29, 46 and 47 during the year. 

 

1.158   Item 136 repeals paragraph 74(1)(g) and substitutes a new paragraph providing that the annual report must include details of other such matters as are required by guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.  If the Committee issues guidelines on occupational health and safety matters, annual reports will be required by this Act to comply with such guidelines.

 

Item 137 - Subparagraph 75(c)(iii)

 

1.159   Section 75 provides that the annual report of the Safety, Rehabilitation and Compensation Commission (the Commission) must contain a report on the operation of the Act and regulations including various statistical elements.  This item is a consequential amendment related to the proposal to insert a new section 45A into the Act to allow investigators to issue oral directions not to disturb a workplace.  (See notes on item 81, above.)  The Commission will now be required to include statistics on directions issued under section 45A in its annual report. 

 

Item 138 - Subsection 76(1) (penalty)

Item 139 - At the end of subsection 76(1)

Item 140 - Subsection 76(2)

 

1.160   Section 76 prohibits an employer from dismissing, injuring or prejudicially altering an employee’s position, or threatening to take such action, because an employee has, or proposes to, make a complaint concerning the health, safety and welfare of employees, assist the conduct of an investigation or cease to perform work in accordance with a direction by a health and safety representative. 

 

1.161   Items 138 and 139 repeal the penalty for a breach of subsection 76(1) and insert a note that an employer who breaches subsection 76(1) may be subject to civil action, the penalty for which is contained in Schedule 2 to the Act.  (See notes on item 158, below.)

 

1.162   Item 140 repeals subsection 76(2).  The conduct of proceedings for breach of this section is to be provided for under Schedule 2 to the Act.  (See notes on item 158, below.)

 

Item 141 - Subsections 77(1) and (2)

Item 142 - Subsection 77(3)

Item 143 - Subsection 77(3)

 

1.163   Section 77 provides for the institution of proceedings for an offence against the Act or the regulations.  The section provides that Comcare or an investigator may institute such proceedings and, in the event that proceedings have not been instituted within 6 months, a health and safety representative for a designated work group (DWG) or an involved union in relation to a DWG, may request in writing that Comcare institute such proceedings.

 

1.164   Item 141 repeals the subsections and substitutes subsections (1), (2), (2A) and (2B).  The new subsections provide a clearer structure to the section and reflect the change in the representation of employees in the conduct of health safety matters in the workplace from involved unions to employee representatives  acting on the request of employees.  New subsection (2B) will provide that any requests to Comcare to institute proceedings by health and safety representatives, or employee representatives in relation to DWGs, must be in writing.

 

1.165   Items 142 and 143 are consequential amendments to reflect the new structure of the section and the change from involved unions to employee representatives. 

 

Item 144 - Subsection 78(1)

Item 145 - Subsection 78(2)

Item 146 - Subsection 78(3)

Item 147 - Subsection 78(4)

 

1.166   Section 78 sets out the conditions under which the conduct of directors, agents and servants of a body corporate will be attributed to a body corporate in proceedings for an offence against the Act or the regulations.  These items omits the words ‘an offence against’ and substitute ‘a breach of’ in subsections 78(1) and (3) and omit the words ‘a prosecution for an offence against’ and substitute ‘proceedings for a breach of’ in subsections 78(2) and (4).  The amendments are necessary as a consequence of amendments to the compliance elements of the Act.  (See notes on item 16, above.)

 

Item 148 - Section 79

Item 149 - Paragraph 79(a)

 

1.167   Section 79 provides, that subject to the effect of a contravention of the Act under section 80, the Act does not confer a right of action in any civil proceedings in respect of any contravention of a provision of this Act or the regulations, or confer a defence to an action or otherwise affect a right of action in any civil proceedings. 

 

1.168   Item 148 inserts the words ‘(other than proceedings under Part 1 of Schedule 2)’ after the words ‘civil proceedings’ wherever they occur in section 79.  This amendment is necessary as a consequence of amendments to the compliance elements of the Act.  (See notes on item 158, below.)

 

1.169   Item 149 substitutes the word ‘breach’ for ‘contravention’ in paragraph 79(a).  (See notes on item 16, above.)

 

Item 150 - Section 80

Item 151 - Subsection 80(2)

 

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

           

1.171   These items substitute the word ‘breach’ for ‘contravention’ in these provisions wherever occurring and in its appropriate grammatical form, including the heading to section 80.  (See notes on item 16, above.)

 

Item 152 - Paragraph 82(1)(c)

 

1.172   This item amends paragraph 83(1)(c) in accordance with the amendments proposed to section 25 of the Act which provide that elections for health and safety representatives may be requested to be conducted in accordance with the relevant Regulations.  (See notes on item 45, above.)

 

Item 153 - Paragraphs 82(1)(d) and (e)

Item 154 - Paragraph 82(1)(h)

 

1.173   Section 82 provides for the making of regulations for the Act.  These items repeal paragraphs 82(1)(d), (e) and (h) and substitute a new paragraph (h).  The amendments reflect changes to the provisions in relation to workplace arrangements under the Act and also allow for higher penalties for contraventions of the regulations.

 

Item 155 - Schedule (heading)

Item 156 - Schedule 1

Item 157 - Schedule  1

 

1.174   The Schedule to the Act specifies some statutory corporations that are Government business enterprises (GBEs) for the purposes of the Act as per the definition of ‘Government business enterprise’ in subsection 5(1).  Other GBEs are automatically covered by the definition in subsection 5(1).  GBEs are able to be prosecuted for breaches of the Act.

 

1.175   Item 155 will change the heading of the Schedule to Schedule 1.  This amendment is necessary as a consequence of the inclusion of a new Schedule, Schedule 2, to the Act.  (See notes on item 158, below.)

 

1.176   Items 156 and 157 amend Schedule 1 to the Act to omit those bodies for which it is no longer appropriate that they be included in the Schedule, or include certain bodies that are GBEs for the purposes of the Act but do not fall automatically fall within the definition of ‘Government business enterprise’ in subsection 5(1). 

 

1.177   Item 156 inserts the following bodies into the Schedule:

·    Australian Government Solicitor

·    Defence Housing Authority. 

 

1.178   Item 157 will omit the following bodies from the Schedule:

·    ANL Limited

·    Health Insurance Commission

·    Housing Loans Insurance Corporation

·    Pipeline Authority

·    Telstra Corporation Limited.

 

1.179   Telstra Corporation Limited remains a GBE for the purposes of the Act, as it comes within paragraph (b) of the definition of government business enterprise in section 5 of the Act.

 

Item 158 - At the end of the Act

 

1.180   This item inserts a new schedule, ‘Schedule 2 - Civil proceedings and criminal prosecutions in respect of breaches of the Act’.  The Act presently provides only for criminal prosecutions, requiring proof beyond reasonable doubt, and providing sanctions with a deterrent effect but limited capacity for remedial orders.  New Schedule 2 will provide for civil penalties, requiring proof only to a civil standard, enabling remedial orders, and encouraging voluntary compliance through provision for enforceable undertakings.  It will retain provision for criminal penalties, in more serious cases, and in cases which are more appropriately dealt with in the criminal justice system (such as contempt of the Safety, Rehabilitation and Compensation Commission).  The Schedule will also make provision for maximum penalties significantly higher than the maximum penalties currently provided, consistent with current Commonwealth criminal law policy.  The Schedule will also explain the interaction between civil proceedings and criminal prosecutions and the procedures for instigating civil proceedings. 

 

1.181   New Schedule 2 is modelled in large part on the enforcement approach of the Commonwealth Authorities and Companies Act 1997, which is in turn modelled on the Corporations Law .

 

NEW SCHEDULE 2 - CIVIL PROCEEDINGS AND CRIMINAL PROSECUTIONS IN RESPECT OF BREACHES OF THE ACT

 

NEW PART 1 - CIVIL PROCEEDINGS

 

1.182   References to ‘person’ in the new Part 1 of Schedule 2 include the body politic that is the Commonwealth (see Acts Interpretation Act 1901 ).  This means that all of the various civil sanctions proposed in the new Part 1 of Schedule 2 can be pursued against the Commonwealth (as well as Commonwealth authorities).

 

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

 

1.183   This clause provides that jurisdiction in civil proceedings is vested only in the Federal Court of Australia and the Supreme Courts of the States and Territories.

 

New clause 2 - Declarations of contravention

 

1.184   This clause lists the provisions of the Act, breach of which will result in a finding of a contravention of this clause.  Subclause (2) retains the reverse onus that presently exists in section 76 of the Act, in respect of any alleged victimisation by dismissal of an employee because of the employee’s actions under the Act:  where all the facts other than the reason for the relevant action have been proved, the person who allegedly breached section 76 bears the onus of proving their action was not taken for the proscribed reason.

 

New clause 3 - Declaration of contravention is conclusive evidence

 

1.185   This clause provides that a declaration by a court of a contravention is conclusive evidence of the matters specified in it.  This precludes any rehearing of the elements of a contravention, in proceedings to enforce a declaration.

 

New clause 4 - Pecuniary penalty orders

 

1.186   This clause enables a court which has declared a contravention to impose a pecuniary penalty order, and specifies the maximum amounts for the various provisions in respect of which contraventions may be declared.  These maximum amounts are in many respects significantly increased beyond the maximum penalties presently provided under the Act, consistent with current Commonwealth criminal law policy.

 

New clause 5 - Who may apply for a declaration or order?

 

1.187   This clause provides that only Comcare or an investigator may apply for a declaration of contravention or pecuniary penalty order.

 

New clause 6 - Time limit for application for a declaration or order

 

1.188   This clause provides that proceedings must be commenced within 6 years of the relevant breach.

 

New clause 7 - Conduct constituting a breach of 2 or more provisions listed in subclause 2(1)

 

1.189   This clause provides that, while a person may be subject to proceedings in respect of multiple contraventions, the person is not liable to multiple penalties for the same conduct.



New clause 8 - Civil evidence and procedure rules for declarations of contraventions etc.

 

1.190   This clause confirms that the rules of evidence and procedure for civil matters apply under this Part.

 

New clause 9 - Civil proceedings after criminal proceedings

New clause 10 - Criminal proceedings during civil proceedings

New clause 11 - Criminal proceedings after civil proceedings

New clause 12 - Evidence given in proceedings for penalty not admissible in criminal proceedings

 

1.191   These clauses provide that civil proceedings in respect of conduct cannot proceed after a criminal conviction for substantially the same conduct, and must be stayed if criminal proceedings are started, but do not preclude later criminal proceedings; however, evidence in civil proceedings is not admissible in criminal proceedings, unless the criminal proceedings concern falsity of evidence.

 

New clause 13 - Relief from liability for contravention of subclause 2(1)

 

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

 

New clause 14 - Injunctions

 

1.193   This clause will provide relevant courts with the power to grant injunctions in relation to both civil and criminal proceedings for alleged or potential breaches of the Act. 

 

1.194   Clause 14 will provide that Comcare or an investigator may apply to a court for an injunction against a person who has breached, is breaching or proposes to breach the Act or the regulations.

 

1.195   Subclauses (2) to (5) will allow the court to grant prohibitory, mandatory or interim injunctions restraining persons from performing acts in breach of the Act or its regulations, or requiring persons to perform acts to prevent a breach of the Act or its regulations.

 

1.196   In addition, the court, when granting a prohibitory injunction, will be able to make orders requiring a person to do something if the court thinks this is desirable. 

 

1.197   Subclauses (6) to (8) will provide for the discharge of injunctions on application, prevent the court from requiring that an applicant give an undertaking as to damages as a condition of granting an interim injunction and provide that the powers conferred on the court by this section are in addition to and do not limit any other powers of the court. 

 

New clause 15 - Remedial orders

 

1.198   This clause will allow a court to make certain remedial orders that it considers appropriate, to rectify a state of affairs. 

 

1.199   Subclause (1) will set out the circumstances in which remedial orders might be made by a court in respect of a declaration or conviction generally.  A court will be able, if requested to do so, to make a remedial order to fully or partly remedy a state of affairs where a court has made a declaration under clause 2 of Schedule 2 to the Act, or convicts a person of an offence against the Act or the regulations.  The court will be able to make remedial orders if the court thinks that it is appropriate to remedy a state of affairs that arose as a direct or indirect result of the conduct that was the subject of the declaration or offence.  In making orders the court will have to consider any relevant material given to it by Comcare.

 

1.200   Subclause (2) will have a similar operation to subclause (1) but will provide for the making of particular types of orders by courts where an employer has injured or threatened to injure in their employment an employee who has either appeared, or is proposing to appear, as a witness at an inquiry under section 64, or has taken action in the circumstances outlined in section 76 (employer not to dismiss etc employee of certain grounds).  The Court will be able to  make orders to reinstate the employee, or pay them compensation, or to issue injunctions to prevent or remedy conduct threatened to the employee by the employer.

 

1.201   Subclause (3) provides that if a court makes a remedial order, it may also make any other consequential orders that it considers appropriate.

 

New clause 16 - Undertakings

 

1.202   This clause enables Comcare to accept a written undertaking relating to an obligation under the Act.  Undertakings may provide an alternative to civil proceedings, and can be accepted whether or not civil proceedings have been commenced.  The clause also provides for enforcement of undertakings, either by direct order or by resumption of suspended proceedings.

 

NEW PART 2 - CRIMINAL PROSECUTIONS

 

New clause 17 - Criminal jurisdiction not conferred on Federal Court

 

1.203   This clause expresses that criminal jurisdiction is not conferred on the Federal Court.  It should be noted that jurisdiction with respect to offences against Commonwealth law is conferred on every State and Territory Court which has jurisdiction to hear trials for equivalent State and Territory offences, under subsection 68(2) of the Judiciary Act 1903 .

 

New clause 18 - Offences resulting in death or serious bodily harm

 

1.204   This clause creates an offence, where breach of a specified provision results in death or serious bodily harm, and the person was either negligent or reckless as to that outcome.  Subclause (2) provides a  defence of reasonable excuse to offences created by the new subclause (1) relating to the breach of subsection 43(2) (requirement to provide assistance and information), section 50 (requirement not to tamper with notices) and section 72 (interference etc with equipment etc.).



 

New clause 19  - Offences exposing employees to a substantial risk of death or serious bodily harm

 

1.205   This clause creates an offence, where breach of subsection 16(1) (duties of employers in relation to their employees etc.), exposes an employee to a substantial risk of death or serious bodily harm where the employer was negligent or reckless as to that outcome. 

 

New clause 20 - Other offences

 

1.206   This clause creates an offence of intentionally breaching certain provisions relating to enforcement of the Act, concerning matters such as cooperation with investigation and enquiry proceedings.  Subclause (2) provides a  defence of reasonable excuse to offences relating to breach of subsection 54(1) (requirement to give information or produce documents), section 57 (failure of witness to attend) and section 59 (refusal to be sworn or to answer questions). 

 

New clause 21 - Maximum penalties

 

1.207   This clause provides maximum penalties for the offences created by clauses 16 and 17, which vary according to the provision breached in each case.  Subclause (3) provides that a court must not direct that a person serve a sentence of imprisonment in default of payment of a fine imposed under this clause.

 

PART 2 - TRANSITIONAL, APPLICATION AND SAVINGS PROVISIONS

 

DIVISION 1 - PROVISIONS RELATING TO EMPLOYER’S DUTIES

 

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

 

Item 159 - Definitions

 

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

 

Item 160 - Safety management arrangements

 

1.210   This item provides that an employer is not in breach of section 16(1) of the OHS(CE) Act by reason only of having failed to develop safety management arrangements under paragraph s16(2)(d) of that Act.  The provision will be in force for 18 months after commencement and, in effect, gives an employer 18 months to develop safety management arrangements. 

 

Item 161 - Occupational health and safety policies

 

1.211   This provision will preserve OH&S policies developed under the repealed paragraph 16(2)(d) until such time that safety management arrangements have been developed.  OH&S policies may be preserved if incorporated in the safety management arrangements or if the safety management arrangements provide that those policies continue to apply.  (See notes on item 26, above.)

 

Item 162 - Agreements between employers and involved unions

 

1.212   This item preserves agreements made under repealed or amended provisions.  Agreements made under subsection 16(3) will continue while the occupational health and safety policy under which they were made has effect.  Agreements under paragraph 21(2)(a) in force immediately before commencement will continue to be effective, despite the amendment to paragraph 21(2)(a), between the employer and any involved union. 

 

DIVISION 2 - PROVISIONS RELATING TO WORKPLACE ARRANGEMENTS

 

1.213   This part contains transitional provisions relating to the proposals to amend the workplace arrangements provisions of the Act contained in Part 1 of this Schedule. 

 

Item 163 - Definitions

 

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

 

Item 164 - Designated work groups

 

1.215   This item provides, in the interest of ensuring continuity, that a designated work group in existence immediately before the commencement of the proposed amendments to the Act continues in existence as if had been established under the amended section 24.

 

Item 165 - Consultations

 

1.216   This item will allow completion of consultations with respect to the establishment of designated work groups under s.24 that are underway but not completed before commencement.  This item will apply for 3 months after commencement. 

 

Item 166 - Health and safety representative

 

1.217   This item ensures continuity by allowing a health and safety representative holding office at the time of commencement to remain in office subject to the OHS(CE) Act as it is in force after commencement

 

Item 167 - Elections

 

1.218   This item will allow for the completion of an election for a health and safety representative that has commenced at the time this Schedule commences under the relevant procedures prior to the commencement of the amendments.



Item 168 - Applications under section 32

 

1.219   This item will allow an application for disqualification of a health and safety representative that has been made but not determined upon the commencement of the amendments to continue to be determined under the old procedures as if the Act had not been amended.  (See notes on item 59, above.)

 

Item 169 - Health and safety committees

 

1.220   This item will allow existing health and safety committees to remain in place in their present form after the commencement of amendments to the Act until the replacement of the committee by a committee established under section 34 of the Act as in force after commencement or the end of the period of 6 months after commencement, whichever is earlier.  (See notes on items 61, above.)

           

1.221   An employer is not taken to be in breach of the amended section 34, which outlines the new circumstances when an employer is required to establish a health and safety committee, if a committee continues in existence under this item in respect of the employer’s employees.

 

DIVISION 3 - MISCELLANEOUS PROVISIONS

 

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

 

Item 170 - Time of effect of notices

 

1.223   This item provides that the new provisions on improvement notices apply only to those notices issued on or after the commencement of those provisions.  (See notes on items 52 and 91, above.)

 

Item 171 - Reports of investigation

 

1.224   This item provides that the proposed amendment to the provisions of the Act concerning reports of investigations applies only to those investigations begun on or after the commencement of the amendment.  (See notes on item 106, above.)

 

Item 172 - Notification of accidents and dangerous occurrences

 

1.225   This item provides that the proposed amendments on notification and reporting of accidents and dangerous occurrences apply only to those occurring on or after the commencement of those provisions.  (See notes on items 122 and 123, above.)

 

Item 173 - Annual Reports

 

1.226   This item provides that annual reports required under section 74 of the OHS(CE) Act for the financial year in which the item commences is not required to include matters that are required by guidelines approved by the Parliament by the Joint Committee of Public Accounts and Audit.  This transitional provision won’t affect any obligations that may apply in relation to guidelines approved by the Parliament other than in relation to occupational health and safety matters.  (See notes on item 136, above.)

 

Item 174 - Regulations prescribing penalties

 

1.227   This item provides that regulations made by the Governor-General under paragraph 82(1)(h) that were in force prior to the commencement of amendments to the paragraph will continue if force as if they had been made under the new paragraph.  (See notes on item 154, above.)



Schedule 2 - CONSEQUENTIAL AMENDMENTS

 

Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001

 

Item 1 - Subsection 2(3)

Item 2 - Schedule 1 (Act heading after item 88)

Item 3 - Items 89 to 132 of Schedule 1

 

1.228   These items repeal various amendments in the Employment, Workplace Relations and Small Business Legislation Amendments (Application of the Criminal Code) Act 2001 which related to what would have been the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2001 .  These consequential amendments are necessary given that the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000 lapsed when Parliament was prorogued prior to the 2001 election.