The harmonisation of Australia’s OHS laws has moved a large step closer with the release of the Exposure Draft – Model Act for Occupational Health and Safety. So what do the experts think?

Employers, unions and all interested stakeholders now have until 9 November 2009 to comment on the framework being proposed. The model act and discussion paper can be viewed here.

CCH asked a number of specialists in the OHS field for their initial impressions and comments on the model act.  They were:  Ron McCallum, Professor of Labour Law, Faculty of Law, University of Sydney; Cormack Dunn, Senior Associate, OHS Specialist, Baker & McKenzie; and, Barry Sherriff , National Lead Partner of the Freehills OHS Practice and member of the panel that conducted the National Review into Model Occupational Health and Safety Laws that reported to the Workplace Relations Ministers’ Council (WRMC).

Ron McCallum

Professor McCallum said the Safe Work Act 2009 exposure draft followed the recommendations made by the Workplace Relations Ministers’ Council on 18 May 2009.  These recommendations built upon the content of the two OHS national reports of the National Panel, and this architecture was reflected in the model statute.

“The model statute is clearly drafted, and its sections, divisions and parts are set out in a logical and ‘easy to find’ order,” Prof McCallum said. 

“It is refreshing to see that modern duties are placed upon persons conducting undertakings or businesses, and that appropriate ‘upstream’ duties are imposed upon manufacturers and designers etc.”

In other words, the model statute did away with the old fashioned duty, which was simply placed upon employers, he said.

“Two matters which have caught my eye are worthy of comment,” Prof McCallum added.

“First, it is pleasing to see that the model statute clearly gives workers the right to cease work on safety grounds.  While this right has appeared for some time in a number of OHS statutes, it is pleasing to see that it will be adopted by all participating governments.”

The second matter concerned the scope of enforceable OHS undertakings.  While giving powers to the regulators to use enforceable OHS undertakings as an alternative to prosecutions was appropriate, Prof McCallum said he was concerned that as presently drafted the model statute allowed such undertakings to be used as an alternative to all category two and category three offences.

“While category two offences may be committed without negligence or recklessness, such offences are often prosecuted following workplace deaths or serious injuries,” he said.

“In my view, enforceable OHS undertakings should not be used as an alternative to prosecutions where, without negligence or recklessness, workplace deaths or serious injuries have occurred.  In my view, this aspect of the model statute could be tightened up.”

“Finally, as a lawyer, it will be interesting to observe the curial arrangements which will be used by participating governments to cover prosecutions.  In other words, will participating governments use their existing courts and procedures for hearing prosecutions under this new statute, or will they make changes to their court structures and procedures.”

Cormack Dunn

Mr Dunn said he could see areas for concern in the model act from two different perspectives; from that of lawyers and from that of the employers.

“In the first instance,  while there has been “considerable debate” about whether or not the model act would change safety standards, having regard to high level of discretion the regulators will have when enforcing the model act, what lawyers are particularly interested to know is whether the model act will be enforced in a consistent manner by individual regulators?” Mr Dunn asked.

“For example, as experience has already shown, a national employer might have an injury [to an employee] in one state that is investigated and then prosecuted. But the same employer might have an identical accident in another state and find that no action is taken against the employer.

“To be truly effective, the model OHS act will need to be uniformly enforced in each state and territory. The most effective way to achieve this is for the WRMC to develop and ensure that each state and territory implements a uniform prosecution policy.”

Another area of interest concerns the jurisdiction in which offences are to be heard. As it stands now, identical charges could be heard before either county court, local court or a supreme court depending on the state in which they occurred, Mr Dunn said.

 “It is unclear what weight each jurisdiction will place on the judgments of other jurisdictions?” he said.

“There are going to be some very challenging issues for the courts in terms of practical administration of the model act.”

 As a solution, Mr Dunn believes that all offences under the model act should be heard in the federal jurisdiction.

From the perspective of the employer, Mr Dunn said he thought the model act would not trigger any radical changes in how employers manage safety.

“What employers want from regulators is proper and consistent guidance to assist them better understand what specific action they need to take to make their work places safer,” he said.

“The model act doesn’t go into that level of detail, so the critical question for employers is what will be the requirements of the model regulations and how far will the WRMC go to develop and adopt uniform codes of practice and standards.” 

Barry Sherriff

Mr Sherriff, who was a member of the panel that reported to the WRMC, said the council’s decision on what the act ought to look like and what it ought to contain had been largely based on the recommendations of the panel.

 “The draft is very much a work in progress and it should be seen as such,” Mr Sherriff said.

“It was an enormous piece of work, the drafters had to work from nine other pieces of primary OHS legislation.”

Mr Sherriff encouraged business, industry, unions and regulators to take the opportunity to make submissions as

“The more feedback the drafters receive, the more likely the model Act will work in practice and improve safety in Australia.”

There are areas where the drafters had diverged from the WRMC decisions and the panel recommendations, including widening the level of immunity granted to councillors and volunteers.

 Some of the other areas of interest would centre on issues like health and safety representatives election and powers, and union right of entry, Mr Sherriff said.

“These are important provisions, designed to help OHS work in practice, but must be carefully drafted to avoid causing problems.”

 “A lot of the clauses in the draft model act have been drawn from current legislation but they have left open some of the difficulties that we currently have with these existing clauses,” he said.

Overall, the proposed model act did do what was intended, he said. It allows for codes of practice and has very broad regulation making powers.

“As the panel recommended and WRMC emphasised, the Act should be as bare bones as possible, the details should be in the codes of practice,” Mr Sherriff said.

The model act was a complete and interdependent package and what people ought to do in making submissions, was to assess it in its entirety, he said.

“You cannot do justice to it by looking at sections in isolation,” Mr Sherriff said.

“You need to look at the whole model act first, to see how it all works, and then move into the details.”

Aspects of the model act might look odd in isolation but would become clearer when it was understood how they operated as part of the whole, he said.

Have your say

What do you think? Are the draft laws a step forward? What are the other issues that concern you with the proposed bill?

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Juliet Bourke, partner, Aequus partners, examines what an employee’s right to request flexibility under the National Employment Standards means for employers.

The Fair Work Act 2009 (FW Act) includes ten National Employment Standards (NES), one of which gives(some) employees the right to request a flexible work arrangement. Between now and 1 January 2010 (when the “right to request” commences), employers have a window of opportunity to get on top of this significant change to the way in which flexible work practices will be negotiated at the workplace. Based on similar legislation overseas (eg the United Kingdom) Aequus Partners predicts an increase in requests for flexibility, not only by those directly covered by the Standard. This article discusses the terms of the Standard and how employers might ensure compliance. In essence, compliance will be about employers demonstrating greater transparency, consistency and thoughtfulness in decision-making about flexible work practices.

Provision
Section 65 FW Act provides that an eligible employee has a right to request of their employer access to a flexible work arrangement.

Who is eligible?
The NES are minimum terms and conditions that apply to all national system employees (eg an employee employed by a corporation or by the Federal Government).

Under s 65(1) employees who are parents of (or care for) children under-school age, or a child under 18 who has a disability, may request a “change in working arrangements”.

The provision applies to both permanent and casual employees. In particular, an employee must have completed 12 months continuous service before making this request, or if the employee is employed on a “casual” basis, the employee must be a long term-casual and have an expectation of continued employment.

What does the provision require?
The request: The employee must make a request in writing demonstrating:

•the reason for the change (ie how the requested change will assist the employee to care for their child)
•the nature of the change.

The response: The employer must respond in writing within 21 days of the request. The response must identify whether the request is granted or refused, and if refused the response must detail the reasons why. These reasons must demonstrate that the refusal was made on “reasonable business grounds”.

What are reasonable business grounds?
The Standard does not define “reasonable business grounds”, nevertheless a body of Australian case law on family/carers’ responsibilities discrimination suggests that relevant issues will include:

• the nature of the role
• the impact of the request on business/team operations
• associated costs as well as the benefit to the individual and the business (eg turnover and productivity).

Enforcement
The penalty for non-compliance with the Standard’s process is $6,600. There is no capacity, however, for a review of the substance of the employer’s decision, ie that it met the “reasonable business grounds” test (this is specifically excluded by s 44(2)). The Standard is thus designed to stimulate  a conversation between an employee and employer, and a mechanism for transparent and consistent decision-making, but not litigation. Enforcement will be indirect, ie through adverse publicity or a claim of  family/carers’ responsibilities discrimination using the written response.

What should employers do to ensure compliance?
Given the likelihood that employers will be held to account for their decisions in relation to an employee’s request for flexibility, a prudent employers would educate their managers about the factors to be taken into account when determining such a request. A checklist of factors would include:

• whether a work/family policy exists within the organisation
• whether a similar request has been granted elsewhere in the business
• the nature of the role and key performance indicators
• options for change (eg including modifications to the request)
• the impact of the change on the team/business unit
• the cost of the change vs the cost of not making the requested change (eg turnover).

In the spirit of evidence-based decision-making, consideration of whether there are “reasonable business grounds” to accept or reject a request might also prompt an employer to introduce the requested change on a trial basis, ie to determine the practicality of the requested change. Finally, in order to ensure that the employer’s assessment is perceived as reasonable, a prudent employer would engage in a consultation process with the employee which demonstrates an open-mind towards the employee’s needs and encourages mutuality. Clearly, just saying “No” to a request because it has never been done before will not be sufficient to meet the spirit of the legislation.

Aequus Partners has developed a toolkit to help employers comply with the “right to request flexibility” Standard.

  (1 votes, average: 4.00 out of 5)
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