The model provisions provide for various parties who are involved in, or contribute to, the undertaking of work to owe duties of care to those who are affected by the work undertaken. Of those, the ‘primary duty of care’ concerns those people or entities in whose business or undertaking work is done, or who provide the means for work to be done. This is a shift away from the ‘general’ duty of care in current OH&S legislation to emphasise the primacy of this duty above all others.
The primary duty of care differs significantly from current OH&S laws in that the duty does not rely on the employment relationship, but rather it applies to a person conducting a business or undertaking (PCBU), whether an employer or not. The primary duty of care will now more readily apply concurrently to multiple duty holders, although a number of employers or self-employed persons may currently owe a broad duty to contractors and non-employees. The model provisions make clearer that PCBUs need not personally undertake compliance activities, so long as they can ensure that someone else is taking the necessary steps to achieve the outcomes.
Officers’ duty of care
The introduction of a positive, proactive duty on officers to exercise due diligence is new to the workplace health and safety regulatory framework. Currently, all Australian jurisdictions provide that officers are merely attributed liability for conduct committed by their company, rather than being allocated a duty in their own right. For example, in New South Wales, Queensland and Tasmania, directors and managers are deemed to be liable for OH&S offences committed by their company unless they can establish a defence (which includes a requirement to exercise all due diligence). The definition of ‘officer’ has been the subject of much debate, with a number of commentators raising concerns about the expansion of categories of persons caught by the proposed definition. The final model provisions adopt the definition in the Corporations Act 2001. This restricts the categories of persons caught by the officer duty to the senior echelon of the company or organisation.
The final model provisions create a new duty on the PCBU to consult not only with workers directly affected by the health and safety matter, but with other duty holders who have a duty in relation to the same matter. In this way, the model laws recognise the benefits of a PCBU engaging effectively with others who are involved in work activities, or providing the tools that are necessary for this to occur. Organisations should consider carefully how they will seek to discharge this obligation in practice. It is recommended that the consultation process be systematic and recorded. One option is to adopt Interface Coordination Plans, widely used in the transport industry. Such plans would record the areas of overlap and record the agreement between duty holders as to the manner in which the respective duties will be discharged.
Organisations ought to start preparing for this new era in Work Health & Safety regulation. It is recommended that organisations take the following steps:
- Legal risk analysis – the new primary duty has broader application than its predecessor. Businesses must undertake a legal risk analysis of their operations to ascertain the extent of their duties
- Review contracts to insert duty holder consultation arrangements and enabling provisions to allow you to discharge your duties. This is critical with long-term contracts entered into over the next few months, which will remain in place long after the commencement of the legislation
- Implement interface coordination plans as a practical solution to the new duty to consult with other duty holders
- Develop robust consultation processes given the expanded application of the duty to consult to cover workers, including contractors and subcontractors
- Develop dispute resolution processes to minimise the need for regulatory involvement in your workplace
- Develop processes on right of entry and regulatory rights and obligations to ensure compliance with the new obligations
- Develop an OH&S Corporate Governance Statement for the board and senior management to ensure compliance with their due diligence duty
Business should be pleased by the themes of the amendments as they provide much needed guidance to duty holders in fulfilling their duties under the legislation. While promising, the WRMC’s approval of the model provisions represents only one milestone on the long road to harmonisation. The ACTU has also expressed concern by the haste that has accompanied the preparation of the model provisions and abstained from voting (as a member of the Safe Work Australia Council) on whether to forward the model provisions to the WRMC.
There are also potential road blocks to the adoption of the laws throughout Australia as Western Australia has, at this stage, decided not to agree to enact the model provisions. Unless all States and Territories enact the model provisions, harmonisation will not be achieved and the regulatory burden for organisations that operate nationally will remain.
Further, much of the detail for work health and safety obligations is contained within regulations. Safe Work Australia is currently developing model regulations to accompany the model Act provisions. The model regulations are expected to be released for public comment in November 2010 (to be submitted to the WRMC for agreement in June 2011). Initial indications suggest that businesses will need to look closely at the model regulations to ensure that the requisite level of guidance is provided to duty holders to meet their obligations.
Michael Tooma is a Partner and Alena Titterton is a Senior Associate at the law firm Norton Rose.